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THE   LAW 


OF 


Presumptive  Evidence, 


INCLUDING    PRESIBIPTIONS  BOTH  OF  LAW  A:;D 

OF  FACT,  AND  THE  BURDEN  OF  PROOF  BOTH 

IN  CIVIL  AND  CRIMINAL  CASES, 


REDUCED   TO  RULES. 


JOHK   D.    LAWSON^, 

Author  of  a  similar  work  on  "  The  Law  of  Expert  and  Opinion  Evidence." 


SAN  FRANCISCO: 
A.  L.  BANCROFT  &  CO.,     ' 

Law  Book  Pubusuers,  Booksellers,  axu  Stationers. 
1885. 


Entered  according  to  Act  of  Congress,  in  the  year  1885,  by 

JOUN  D.  LAWSON, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE. 


The  present  work,  following  the  method  pursued  by  me 
in  my  "  Expert  and  Opinion  Evidence,"  is  an  endeavor  to 
present  the  topic  of  Presumptive  Evidence  (and  incidentally 
the  Burden  of  Proof),  as  follows,  viz.  :  1.  A  series  of  rules 
and  sub-rules.  2.  A  series  of  illustrations  under  each  rule. 
3.  A  discussion  or  commentary  upon  the  rule  and  upon  the 
particular  illustration,  showing  the  reasons  for  the  rules 
themselves,  and  the  grounds  upon  which  the  courts  have 
proceeded  in  giving  particular  applications  to  them.  The 
rules  are  those  principles  which  after  an  examination  of  all 
the  cases  on  the  particular  subject,  I  have  concluded  are  the 
lain.  The  illustrations  are  all  taken  from  decided  cases  and 
arc,  therefore,  open  to  examination  and  verification  by  the 
student  or  practitioner.  The  commentary  shows  the  rea- 
soning of  the  courts  in  the  particular  illustrations,  and 
points  out  the  conflict  of  authorities  wherever  such  conflict 
exists. 

In  noticing  my  book  on  "  Expert  and  Opinion  Evidence" 

(iii) 


iv  TKEFACE. 

the  American  Law  Bevleio  of  November,  1883,  says  of  the 
jjlan  which  I  adopted  in  that  and  have  followed  in  this  :  — 

"  It  has  the  great  advantage  of  facilitating  rapid  search  and  convenient 
reference,  even  if  no  higher  merit  could  be  ascribed  to  it.  It  has  the 
advantage  of  showing  us  that  some  things  in  the  law  at  least  may  be 
regarded  as  settled;  that  these  things  are  capable  of  being  reduced  to 
rules,  and  that  these  rules  may  be  printed  by  themselves  in  such  a  way 
that  a  judge  or  practitioner  can  quickly  put  his  finger  upon  them.  It 
also  has  the  advantage  of  cataloguing,  so  to  speak,  in  brief  language,  the 
illustrations  of  the  rules,  showing  the  manner  in  which  the  rules  have 
been  applied  by  the  courts  in  cases  actually  decided." 

"  "WTiat,  under  the  circumstances  of  this  case,  are  the 
presumptions  to  be  drawn?  "  is  a  question  which  arises  con- 
stantly in  practice.  I  have  a  hope  that  the  number  of 
future  cases  may  be  small  which  will  not  be  found  to  fall 
in  principle  under  one  or  other  of  the  one  hundred  and 

thirtv-ninc  rules  contained  in  this  book. 

J.  D.  L. 

St,  Louis,  March  1,  1885. 


TABLE  OF  CONTENTS. 


PART  I. 

THE  PRESUMPTIONS  OF  KNOWLEDGE. 
Chapter  I. 

PAGE 

The  Pkesumptions  of  Knowledge  of  Law  axd  Fact      .        .  5-2i 


PART  II. 

THE  PRESUMPTIONS  OF  REGULARITY  AND  INNOCENCE. 

Chapter  II. 
The  Regularity  of  Judicial  Acts 27-53 

Chapter  III. 
The  Regularity  of  Officlu.  Acts 5i-CG 

Chapter  IV. 
The  Regularity  op  Business  and  Unofficial  Acts        .        .        G7-92 

Chapter  V. 
The  Presumptiox  of  Ixxocexce  ix  CI^^L  Cases    .         .        .      93-102 

Chapter  VI. 
The  Presumption  OF  Marrlvge  AXD  Legitimacy     ,        .        .    104-119 

Chapter  VII. 
The  Presumption  Against  a  Spoliator 120-lGO 

(V) 


VI  TABLE   OF    CONTENTS. 

PAET  in. 

THE  PRESUMPTIONS  OF  CONTINUANCE  AND  UNLFORMITT. 
Chapter  VIII. 

PAGE 

The  Presumption  of  the  Coxtixuaxce  of  Things  Generally    163-191 

Chapter  IX. 
The  Presumption  OF  Life 192-199 

Chapter  X. 
The  Presumption  of  Death 200-239 

Chapter^XI. 
The  Presumption  op  Survivorship 240-247 

Chapter  XII. 
The  Presumption  of  Identity 248-2G1 

Chapter  XIIL 
The  Presumption  of  Intent 2G2-278 

Chapter  XrV. 
The  Presumptions  from  the  Course  of  Nature    .       .       .    279-306 

Chapter  XV. 

The  Presumptions  of  Payment  and  the  Discharge  of  Obli- 
gations           307-357 

Chapter  XVI. 
The  Presumptions  Concerning  Foreign  Laws     .       .       .    85S-380 

Chapter  XVII. 
The  Presumptions  From  the  Alteration  of  Instruments     381-401 


TABLE   OF   CONTENTS.  Til 

PART   IV. 
THE  PRESUMPTIONS  IN  THE  LAW  OF  REAL  PROPERTY. 

Chapter  XVIII. 

PAGE 

The  Presumptions  from  Possession  and  Lapse  of  Time  .    403-429 


PART  V. 

THE  PRESUMPTIONS  IN   CRIMINAL  CASES. 

Chapter  XIX. 
The  Presumptions  in  Favor  of  Innocence     ....    432-492 

Chapter  XX. 
The  Presumptions  in  Disfavor  of  Innocence   . .        .       .       493-552 


PART  VI. 

GENERAL  RULES. 

Chapter  XXI. 
The  General  Rules  as  to  Presumptions  .        .        .       655-590 


TABLE  OF  RULES. 

1130  rules  — 122  main,  17  sub.1 


PART  I. 

THE  PRESUMPTIONS  OF  KNOWLEDGE. 

CHAPTER  I. 

The  Presumptions  of  Knowledge  of  Law  and  Fact. 

Rule  1. — Eveiy  one  is  presumed  to  know  the  law 
when  innorance  of  it  would  relieve  from  the  conse- 
quences  of  a  crime  or  from  liability  upon  a  contract.       5 

Rule  2.  — But  there  is  no  presumption  of  knowledge  of 
private  or  foreign  laws 14 

Rule  3.  —  Persons  engaged  in  a  particular  trade  are 
presumed  to  be  acquainted  with  the  value  of  articles 
bought  and  sold  therein,  the  names  under  which  they 
go  in  such  trade,  and  the  general  customs  obtaining 
and  followed  there 15 

Rule  4.  — The  contents  of  a  writing  signed  by  a  party 
himself,  or  by  another  at  his  request,  are  presumed 
to  be  known  to  him,  and  so  of  a  paper  drawn  up  by 
one  for  another,  and  the  matters  referred  to  in  such 

writing 18 

(ix) 


X  TABLE   OF  RULES. 

PAGE 

EuLE  5 .  —  The  burden  of  proof  is  on  the  party  to  show 
a  material  fact  of  which  he  is  best  cognizant    ...     20 

EuLE  6.  —  The  burden  of  proof  of  notice  to  a  bona  fide 
purchaser  is  on  the  person  alleging  such  notice     .     .     23 

EuLE  7.  — There  is  no  presumption  that  a  person  not 
called  as  a  witness  has  any  knowledge  of  facts     .     .     23 


PART   II. 

THE    PRESUMPTIONS     OF    REGULARITY    AND    INNO- 
CENCE. 

CHAPTER  II. 

The  Regularity  of  Judicial  Acts. 

EuLE  8.  —  Where  a  court  having  general  jurisdiction 
acts  in  a  case,  its  jurisdiction  to  so  act  will  be  pre- 
sumed     27 

EuLE  9.  — But  where  the  proceedings  are  taken  by  an 
inferior  court,  or  are  under  a  special  authority 
granted  to  any  tribunal  in  a  special  case  or  for  special 
purposes,  or  are  not  according  to  the  course  of  the 
common  law,  the  jurisdiction  is  not  presumed,  but 
must  be  shown 27 

EuLE  10.  —  The  regularity  of  the  proceedings  of  courts 
of  general  powers  is  presumed,  and  so  of  the  pro- 
ceedings of  inferior  courts,  jurisdiction  being  once 
shown  to   exist 34 


TABLE    OF    RULES.  XI 

PAGE 

KuLE  11. — Jurisdiction  of  the  person  beyond  the  ter- 
ritorial limits  of  a  court  of  general  powers  can  not  be 
presumed 45 

Rule  12. — And  a  presumption  can  not  contradict 
facts  averred  or  proved 46 


CHAPTER  III. 

The  REGULARiTr  of  Official  Acts. 

Rule  13.  —  The  presumption  is  that  one  who  is  proved 
to  have  acted  in  an  oflBcial  cai:)acity  possessed  the 
necessary  and  proper  authority 46 

Rule  14.  — The  presumption  is  that  public  officers  do 
as  the  law  and  their  duty  requires  them     ....     54 

Sub-Rule  1.  — And  the  presumption  in  Rules  13  and 
14  prevails  as  to  the  authority  and  acts  of  private 
officers 'GO 

CHAPTER  rv. 

The    Regularity   of   Busixess   and   Uxofficial   Acts. 

Rule  15. — In  commercial  transactions  the  jDresump- 
tion  is  that  the  usual  course  of  business  was  followed 
by  the  parties  thereto C7 

Sub-Rule  1. — Persons  engaged  in  a  particular  trade 
are  presumed  to  be  acquainted  ivith  the  value  of  arti- 
cles bought  and  sold  therein,  the  names  under  icJdch 
they  go  in  such  trade,  a)id  the  general  customs  obtain- 
ing and  followed  there 72 


XI I  TABLE   OF   RULES. 

PAGE 

SuB-TJuLE  2. — All  agreement  to  pay  for  services  ren- 
dered and  accepted  is  presumed,  unless  the  'parties 
are  'members  of  the  same  family  or  near  relatives     .     75 

Sub-Rule  3. — N'egotiahlepajoer  is  presumed  to  have  been 
regularly  'negotiated,  and  to  be  or  to  have  been  regu- 
larly held,  except  where  it  was  procured  or  put  in  cir- 
culation through  fraud  or  duress  or  is  illegal  .     .     .     71 

Rule  16.  — The  presumption  is  that  any  act  done  was 
done  of  ri^ht  and  not  of  wron<]c 81 

Rule  17.  —  The  performance  of  a  mere  moral  duty  is 
not  presumed 81 

Rule  18.  — Documents  regular  on  their  face  are  pre- 
sumed to  have  been  properly  executed,  and  to  have 
undergone  all  formalities  essential  to  their  validity   .     82 

Sub-Rule  1.  — Dates  are  presumed  to  be  correct,  when 
found  in  written  instrumeiits,  but  are  no  evidence  of 
collateral  facts 89 

CHAPTER  V. 

The  Pkesumption  of  Innocence  in   Civil  Cases. 

Rule  19.  — A  person  who  is  shown  to  have  done  any 
act  is  presumed  to  have  done  it  innocently  and  hon- 
estly, and  not  fraudulently,  illegally,  or  wickedly     .     93 

CHAPTER  VI. 

The  Presumption  of  Marriage  and  Legitimacy. 

Rule  20.  —  Marriage  or  filiation  (parentage)  maybe 
presumed 104 


TABLE   Ol''   i:ULES.  XIU 

PAGE 

SuB-KuLE  1 .  —  TJie  law  presumes  the  validity  of  a  mar- 
riarje  ceremony,  and  that  every  person  is  Ipfjitimale  .   106 

Rule  21.  —  A  person  proved  to  have  been  born  diir- 
in*!-  the  continuance  of  a  valid  marriaire  between  his 
mother  and  any  man,  or  within  such  time  after  the 
dissolution  thereof  and  before  the  celebration  of  an- 
other valid  marriage,  that  his  mother's  husband  could, 
according  to  the  course  of  nature,  have  been  his 
father,  is  presumed  to  be  the  legitimate  child  of  his 
mother's  husband 108 


CHAPTER  VII. 

TuE  Presumption  Agaixst  a   Spollator. 

EuLE  22. — The  omission  of  a  party  to  an  action  to 
testify  to  facts  or  to  produce  evidence  in  explanation 
of,  or  to  contradict  adverse  testimony,  raises  a  pre- 
sumption against  his  claims,  unless  the  evidence  is 
not  peculiarly  within  his  power,  or  is  privileged       .   120 

Rule  23.  — But  the  presumption  arising  from  the  non- 
production  of  evidence  within  the  power  of  the  party 
docs  not  relieve  the  opposite  party  altogether  from 
the  burden  of  proving  his  case 137 

Rule  24. — The  alteration,  suppression,  falsification, 
or  manufacturing  of  evidence  raises  a  presumption 
against  the  spoliator,  where  the  evidence  is  relevant 
to  the  case,  or  it  was  his  duty  to  preserve  it,  —  omnia 
pro2sumuntur  contra  spoliatorem 140 

Rule  25.  — The  fact  of  spoliation  standing  alone  ma}-- 
defeat  a  claim,  but  of  itself  can  not  sustain  a  claim  .   152 


xiv  TABLE    OF   EULES. 

PAGE 

EuLE  2'o.  — But  the  presumption  in  disfavor  of  a  spo- 
liator does  not  arise  where  the  document  concealed  or 
destroyed  is  otherwise  proved  in  the  case,  or  the 
spoliation  is  open  and  for  cause 154 

EuLE  27.  — The  voluntary  destruction  of  a  document 
raises  prima  facie  a  presumption  of  fraud,  and. pre- 
cludes the  spoliator  from  giving  secondary  evi- 
dence of  its  contents  in  the  absence  of  a  legal  excuse 
for  its  destruction 157 

KuLE  28.  — That  the  destruction  was  the  result  of  mis- 
take, accident,  or  some  fault  not  amounting  to  a 
fraud  furnishes  a  "  legal  excuse"  within  Eule  27.     .   159 


PAET  III. 

THE    PRESUMPTIONS     OF    CONTINUANCE    AND    UNI- 
FORMITY. 

CHAPTER  VIII. 

The  Presumption  of  the  Coxtinuance  of  Things  Gen- 
erally. 

Eule  29.  —  Possession  or  ownership  of  either  realty 
or  personalty,  non-possession  or  loss,  debts,  and 
other  conditions  of  property  or  things,  once  proved 
to  exist,  are  presumed  to  continue  until  the  contrary 
is  shown 1G3 


TABLE    OF    RULES.  XV 

PACK 

EuLE  30.  —  Domicil,  residence  or  non-residence,  sol- 
vency or  insolvency,  infancy,  partnership,  the  hold- 
ing of  an  office,  authority  to  do  an  act,  and  other 
relations  or  conditions  of  persons  or  things,  onco 
shown  to  exist  are  presumed  to  continue  until  the 
contrary  is  proved 172 

Rule  31.  —  Sanity  or  insanity  once  proved  to  exist  is 
presumed  to  continue.  But  aliter,  as  to  temporary 
insanity,  produced  by  drunkenness,  violent  disease, 
or  otherwise 179 

Rule  32.  —  The  character  and  habit  of  a  person  is  pre- 
sumed to  continue  as  proved  to  be  at  a  time  past     .   180 

Rule  33. — Specific  acts  done  in  other  cases  do  not 
raise  the  inference  that  a  similar  act  Avas  done  in  an- 
other case,  and  evidence  of  them  is  inadmissible       .   182 

Rule  34.  —  But  the  habit  of  an  individual  being  proved 
he  is  presumed  to  act  in  a  particular  case  in  accord- 
ance with  that  habit        184 

Rule  35. — But  a  future  continuance  is  never  pre- 
sumed     187 

Rule  36.  — An  admission  made  by  a  party  to  a  suit, 
or  his  attorney,  that  a  certain  fact  exii^ts  and  need 
not  be  proved,  does  not  dispense  with  proof  of  the 
existence  of  that  fact  subsequent  to  the  date  of  the 
admission         180 

Rule  37.  —  And  a  presumption  is  not  retrospective     .   190 

Rule  38. — In  case  of  conflicting  presumptions,  the 
presumption  of  the  continuance  of  things  is  weaker 
than  the  presumption  of  innocence 191 


XVI  TABLE   OF   KULES. 

CHAPTER  IX. 
The  PREStnMPTiox  of  Li^e. 

PAGE 

EuLE  39. — Love  of  life  is  presumed,  and  a  person 
proved  to  have  been  alive  at  a  former  time  is  pre- 
sumed to  be  alive  at  the  present  time  until  his  death 
is  proved  or  a  presumption  of  death  arises     .     .     .   192 

EuLE  40.  —  Death  may  be  proved  by  reputation,  by 
hearsay,  or  by  evidence  of  facts  inconsistent  with  the 
theory  of  the  existence  of  life 197 

Edle  41.  —  One  who  is  proved  to  have  been  unmarried 
when  last  known  to  be  alive  will  be  presumed  to  have 
died  childless;  but  it  is  otherwise  where  he  or  she 
was  married  when  last  known  to  be  alive    ....  197 

EuLE  42.  —  But  it  is  to  be  presumed  that  a  person 
proved  to  be  dead  left  an  heir 198 

CHAPTER  X. 

The  PREsrarPTiox  of  Death. 

EuLE  43.  —  An  absentee  shown  not  to  have  been 
heard  of  for  seven  years  by  persons,  who  if  he 
had  been  alive  would  naturally  have  heard  of  him, 
is  presumed  to  have  been  alive  until  the  expiry  of 
such  seven  years,  and  to  have  died  at  the  end  of 
that  term 200 


TABLE   OF   nULES.  Xvii 

PAGE 

Rule  44.  —  An  "absentee"  wilhin  Rule  43  is  one 
•vvho  has  left  his  residence,  home,  or  domicil,  cither 
temporarily  (intending  to  return)  or  permanently 
(intendinf^  to  establish  a  fixed  residence,  home,  or 
domicil  elsewhere).  Where  the  "removal  is  tem- 
porary, absence  alone,  without  being  heard  of,  is 
sufficient  to  raise  the  presumption  of  death  within 
Rule  43.  But  where  it  is  permanent,  without  inten- 
tion to  return,  the  presumption  does  not  arise  until 
inquiry  has  been  made  at  the  fixed  residence,  home, 
or  domicil 212 

Rule  45.  —  "  Persons  who  would  naturall}^  have  heard 
of  him  "  within  Rule  43  is  not  confined  to  a  particu- 
lar class  ;  they  may  be  relatives  or  strangers  .     .     .215 

Rule  4G.  — "Not  been  heard  of"  within  Rule  43 
means  that  none  of  the  "  [)ersons  "  referred  to  in 
Rule  45  have  heard  any  thing  about  him  which  should 
or  would  raise  a  reasonable  doubt  in  his  or  her  mind 
that  he  really  was  no  more 216 

Rule  47.  —  The  absentee's  "  residence,  home  or  domi- 
cil," within  Rule  44,  refers  to  that  place  which  he 
first  departed  from,  and  does  not  include  places  where 
he  may  have  afterward  resided  or  visited    ....   222 

Rule  48.  —  But  the  presumption  will  arise  that  the 
death  of  the  absentee  has  occurred  before  the  expi- 
ration of  the  seven  years  from  being  last  heard  of, 
where  any  of  the  following  circumstances  are  shown, 
viz.:  See  Rules  49,  50,  51,  52     .     .      •     ....   222 

Rule  49.  —  That  M'ithin  that  time  he  was  in  a  des- 
perate state  of  health 222 

b 


Xviil  TABLE    OF   KULES. 

PAGE 

EuLE  50.  —  That  -v^-ithin  that  time  he  embarked  on  a 
vessel  which  has  not  since  been  heard  of  and  is  long 
overdue,  inquiries  having  been  made  at  her  ports  of 
departure  and  destination 223 

EuLE  51.  —  That  at  some  time  within  that  period  he 
has  encountered  a  "  specific  peril,"  which  includes 
not  the  ordinary  dangers  of  travel  or  navigation,  but 
some  unusual  or  extraordinary  danger        ....  230 

Rule  52. — That  his  habits,  character,  domestic  rela- 
tions or  necessities  would  have  made  it  certain 
that  if  alive  within  that  perio(J,  he  would  have  re- 
turned to  or  communicated  with  his  residence,  home 
ordomicil 233 

Rule  53. — But  the  presumption  of  death  at  the  ex- 
piration of  seven  years  from  being  last  heard  of, 
does  not  arise  where  it  is  improbable  that  the  absen- 
tee, even  if  alive,would  or  could  have  been  heard  of  at 
or  would  or  could  have  communicated  with  his  resi- 
dence, home  or  domicil,  or  where  in  other  judicial 
proceedings  the  absentee  is  recorded  as  having  been 
alive  subsequently  to  the  end  of  the  seven  years 


CHAPTER  XI. 

The  Presumption  of  Survivorship. 

RltLtE  54. — There  is  no  presumption  as  to  the  order 
in  which  two  or  more  persons  died,  who  are  shown 
to  have  perished  in  the  same  accident,  shipwreck  or 
battle.  The  law  regards  them  as  having  died  at  the 
same  instant 240 


TABLE    OF    KULES.  xLx 

I'ACJE 

Rule  55.  — But  where  the  calamity,  though  common 
to  all,  consists  of  a  series  of  successive  events,  sep- 
arated from  each  other  in  i)oint  of  time  and 
character,  and  each  likely  to  produce  death  upon 
the  several  victims,  accordinij  to  the  decree  of  ex- 
posure  to  it,  the  difference  in  age,  sex,  or  health 
may  raise  an  inference  of  survivorship       .     .     .     .   24G 

Rule  5G. — And  the  one  of  several  in  a  common 
danger  which  proved  fatal  to  all,  who  was  last  seen 
or  heard  alive  within  the  operation  of  the  cause 
of  death,  is  presumed  to  have  survived  the  others  .  246 

CHAPTER  XII. 

The  PRESUMmox  of  Idextity. 

Rule  57.  —  Identity  of  name  raises  a  presumption  of 
identity  of  person,  w^hcre  there  is  similarity  of  res- 
idence or  trade  or  circumstances  or  where  the  name 
is  an  unusual  one.  But  allter  where  the  name  is  a 
common  one  and  there  are  several  persons  known  of 
the  same  name  and  of  the  same  place 248 

Rule  58.  —  The  fact  that  the  family  name  and  initials 
are  the  same  raises  no  presumption  that  the  parties 
are  the  same 255 

Rule  59.  — "Where  two  persons  of  the  same  name  oc- 
cupy different  positions  or  relations,  the  presumption 
is  that  they  are  different  persons 25G 

Rule  GO.  —  The  initials  preceding  a  surname  are  pre- 
sumed to  be  the  initials  of  a  name  and  not  the  abbrevi- 
ations of  a  title 258 


XX  TABLE    OF    RULES. 

PAGE 

Rule  G1.  — Where  an  interest  is  claimed,  mere  identity 
of  name  to  tlie  person   entitled  is  insuflBcient     .     .    258 

Rule  62.  — Where  father  and  son,  or  two  persons  of 
different  ages,  bear  the  same  name,  that  name  when 
used  is  presumed  to  indicate  the  father  or  the  elder 
of  the  two,  as  the  case  may  be 258 

Rule  63.  — And  the  identity  of  things  may  be  presumed 
from  circumstances        261 


CHAPTER  Xin. 

The  Presumption  of  Intext. 

Rule  64. — Where  a  person  does  an  act,  he  is  pre- 
sumed in  so  doing  to  have  intended  that  the  nat- 
ural and  legal  consequences  of  his  act  shall  result     .  262 

Rule  65.  —  Where  an  act  is  criminal  per  se  a  criminal 
intent  is  presumed  from  the  commission  of  the  act.   266 

Rltl,e  G6.  — But  when  a  specific  intent  is  required  to 
make  an  act  an  offense,  the  doing  of  the  act  does  not 
raise  a  presumption  that  it  was  done  with  the  spe- 
cific intent 271 

Rule  67.  —  The  law  presumes  an  intent  from  acts  in 
the  absence  of  declarations,  where  the  party  is  physi- 
cally and  mentally  capable  of  forming  an  intent     .  272 

Rule  68.  — A  person  is  presumed  to  intend  to  do  what 
is  within  his  right  and  power  rather  than  what  is 
beyond  them        .     .     .     .   , 276 


TABLE    OF    IIULES.  XXI 

CHAPTER  XIV. 

The  Pkesumptioxs  from  the  Course  of  Nature. 

Rule  G9.  — The  law  presumes  that  in  a  particular  case 
tlio  regular  course  of  nature  applied  or  was  fol- 
lowed      279 

Rule  70.  —  A  person  is  presumed  to  do  Tvhat  it  is  his 
interest  to  do,  and  not  to  act  against  his  interest. 

CHAPTER  XV. 

The  Presu^iptions  of  Payment  and  the  Discharge  of 
Obligations. 

Rule  71.  — Independent!}'  of  a  statute  of  limitations  or 
in  the  absence  of  one,  after  a  lapse  of  twenty  years 
the  law  raises  a  presumption  of  the  payment  of  bonds, 
mortgages,  legacies,  taxes,  judfrments,  the  due  execu- 
tion of  a  trust,  and  the  performance  of  a  covenant .  308 

Rule  72. — The  presumption  under  Rule  71  does  not 
arise  from  lapse  of  time  alone  short  of  twenty 
years  ;  but  a  shorter  time,  in  connection  with  other 
circumstances,  may  raise  a  presumption  of  fact  that 
payment  has  been  made 320 

Rule  73.  — A  statute  of  limitation  prohibits  the  action 
after  the  legal  period,  but  the  presumption  of  law 
arising  from  lapse  of  time  may  be  rebutted.  And 
the  term  fixed  by  the  statute  of  limitations  can  not  be 
shortened  by  lapse  of  time  alone 327 


XXli  TABLE    OF    IIULES. 

PAGE 

EuLE  74.  —  The  presumption  of  payment  may  be  re- 
butted under  Rule  73  by  showing  (at  anytime  during 
the  period  which  creates  the  presumption)  an  ac- 
knowledgment of  the  debt  by  the  debtor  ;  or  a  pay- 
ment of  part  of  it,  or  a  known  or  notorious  insolvency 
or  incapacity  of  the  debtor  ;  or  by  evidence  of  the  re- 
lation, situation,  or  intention  of  the  parties ;  or  by 
other  circumstances  ex})lanatory  of  the  delay  .     .     .  333 

Rule  75.  —  A  presumption  of  payment  other  than  by 
lapse  of  time  will  arise  from  the  production  of  a  re- 
reipt  from  the  creditor ;  from  the  possession  by  the 
debtor  of  the  security  or  obligation,  or  from  its  can- 
cellation ;  from  the  payment  of  a  later  debt ;  from 
the  passing  of  money  between  debtor  and  creditor 
after  the  debt  is  due;  from  the  custom  of  trade  ;  or 
from  other  circumstances  raising  an  inference  of  pay- 
ment       344 

Rule  76. — The  presumption  in  Rule  75  does  not 
arise,  where  the  debtor  had  the  means  of  obtaining 
possession  of  or  of  cancelling  the  obligation  other 
than  by  paying  it,  nor  where  the  debt  paid  was  not 
the  debtor's  alone 355 

Rule  77. — The  presumption  of  payment  is  stronger 
than  the  presumption  of  continuance,  but  weaker 
than  the  presumption  of  innocence 356 

CHAPTER  XVI. 

The  Presujiptioxs  Concerning  Foreign  Laws. 

Rule.  78. — Where  in  one  State  or  country  the  law 
of  another  State  or  country  is  the  subject  of  inquiry, 
the  law  of  the  forum  will  be  presumed  to  be  the  law 
of  the  foreign  State  or  country 358 


TABLE    OF   liULES.  XXIU 

PACE 

Rule  79.  — Acts  which  aro  criminal  by  the  law  of  the 
forum  and  arc  malum  in  se^  will  be  presumed  to  be 
crimes  in  a  foreign  State  or  country 3Gj 

IxULE  SO.  —  The  term  ''another  State  or  country" 
within  Rule  78  does  not  (in  the  United  States)  in- 
clude a  State  or  country  which  has  never  been  sub- 
ject to  the  common  law  of  England  or  a  tribe  or 
nation  uncivilized 3G6 

Rule  81. — When  one  State  or  country  adopts  the 
statute  of  another  State  or  country  which  has  re- 
ceived a  judicial  construction  in  that  country,  such 
construction  is  presumed  to  have  been  adopted  with 
the  statute 3G9 

Rule  82.  —  The  term  *Maw  "  within  Rule  78  is  re- 
stricted to  the  common  law  of  the  forum,  or  the 
commercial  law  and  docs  not  include  the  statute 
law  of  the  forum 371 

Rlxe  83.  — And  a  rule  of  the  common  law  to  which 
exceptions  have  been  made  by  the  courts  will  not  be 
presumed  to  be  in  force  intact  in  the  foreign  State 
or  country 379 


CHAPTER  XVn. 

The  Presu:mptioxs  from  the  iIlteratiox  of  instruments. 

Rule  84. — Alterations,  erasures  and  interlineations 
appearing  on  the  face  of  writings,  whether  under 
seal  or  not,  are  presumed  to  have  been  made  before 
their  execution  or  completion 381 


XXIV  TABLE   OF  nULES. 

PAGE 

EuLE  85.  — But  where  the  alteration  is  in  a  different 
handwriting  from  the  rest  of  the  instrument ;  or  in  a 
different  ink  ;  or  in  the  interest  of  the  party  setting  it 
up  ;  or  is  suspicions  on  its  face;  or  the  execution  of 
the  instrument  is  denied  under  oath,  the  burden  of 
proof  rests  on  the  party  producing  the  instrument  to 
explain  it  to  the  satisfaction  of  the  tribunal      .     .     .  389 


PART  ly. 

THE  PRESmiPTIONS  IN  THE  LAW  OF  REAL  PROP- 
ERTY. 

CHAPTER  XVin. 

The  PnEsmiPTioNS  from  Possession  and  Lapse  of  Time. 

Rule  86. — ^Yhere  it  is  shown  that  any  person  has  for 
a  long  period  of  time  exercised  any  proprietary 
right  which  might  have  bad  a  lawful  origin  by  grant 
or  license  from  the  public  or  from  a  private  person, 
and  the  exercise  of  which  might  and  naturally  would 
have  been  prevented  by  the  persons  interested  if  it 
had  not  had  a  lawful  origin,  the  presumption  arises 
that  such  right  had  a  lawful  origin,  and  that  it  was 
created  by  a  proper  instrument  which  has  been 
lost 403 

Rule  87. — Where  there  exists  no  power  to  make  a 
grant,  none  can  be  presumed  from  long  posses- 
sion   417 


TABLE    OF   RULES.  XXV 

PAGE 

Rule  88.  — "Wlien  a  person  h  in  possession  of  prop- 
erty and  is  shown  entitled  to  the  beneficial  ownership 
tliereof,  the  presumption  is  tliat  every  instrument 
has  been  executed,  and  every  thing  has  been  done 
to  render  his  title  legal 419 

Rule  89.  —  And  the  possession  of  personal  property 
raises  a  presumption  of  title  in,  and  ownership  of, 
the  property  by  the  possessor 420 


PART  y. 

TIIE  PRESU3IPTI0NS  IN  CRIMINAL  CASES. 

CHAPTER  XIX. 

The  PEEsmiPTioxs  ix  Favor  of  I^^f0CENCE. 

RuxE  90.  —  The  law  presumes  the  innocence  of  a  per- 
son charged  with  crime  until  the  contrary  is  proved 
beyond  a  reasonable  doubt 432 

Sub-Rlxe  1.  —  Fraud  is  never  presumed  unless  such 
circumstances  are  shown  as  icill  legally  justify  such 
an  inference 439 

Sub-Rule  2. — KAnd  good  character  is  presumed     .     .    442 

Rule  91. — A  prima  facie  case  does  not  take  away 
from  a  defendant  a  presumption  of  innocence     .     .  445 


XXVI  TABLE    OF   KULES. 

PAGE 

EuLE  92.  —  Where  there  are  conflicting  presumptions, 
the  presumption  of  innocence  will  prevail  against 
the  presumption  of  the  continuance  of  life,  the  pre- 
sumption of  the  continuance  of  things  generally, 
the  presumption  of  marriage,  the  presumption  of 
chastity.  But  it  is  otherwise  as  to  the  presumption 
of  knowledge  of  the  law  and  the  presumption  of 
sanity 447 

Rule  93. — The  presumption  of  innocence  may  be 
strengthened  —  as  by  the  relation  of  the  parties     .  460 

Rule  94.  —  But  except  for  the  purpose  of  the  trial,  a 
presumption  of  guilt  arises  from  the  finding  of  an 
indictment 460 

Rule  95.  — Where  a  person  does  an  act  which  is  un- 
lawful unless  he  possesses  a  certain  qualification,  the 
burden  is  on  the  prosecution  to  show  that  be  does 
not  possess  the  requisite  qualification,  unless  the 
proof  is  peculiarly  in  his  possession  ;  and  that  it  may 
involve  him  in  proving  his'  innocence  does  not 
change  the  rule 462 

Rule  96.  —  A  person  is  presumed  to  intend  the  natural 
and  legal  consequences  of  his  acts 467 

Rule  97.  —  Where  an  act  is  criminal  per  se  a 
criminal  intent  is  presumed  from  the  commission 
of  the  act 469 

Sub-Rule  1.  — But  when  a  specific  intent  ^is  required 
to  make  an  act  an  offense ^  the  doing  of  the  act  does 
not  7'aise  a  presumption  that  it  loas  done  with  the 
specific  intent 472 


TABLE   OF   RULES  XXVI I 

PAGE 

EuLE  08.  —  Possession,  knowledge,  or  motive  may 
overthrow  the  presumption  of  innocence,  and  raise 
in  its  place  the  presumption  of  guilt 478 

Rule  90,  —  A  person  on  trial  for  one  crime  can  not  bo 
presumed  guilty  because  he  has,  at  another  time, 
committed  a  similar  or  different  crime,  and  the  latter 
fact  is  not  admissible  in  evidence  against  him     .     .481 

Rule  100. — But  to  prove  knowledge  or  intent  or 
motive  a  collateral  crime  may  be  shown     .     .     .     .487 

Rule  101.  — A  separate  crime  from  that  charged  may 
be  shown  w'here  it  is  necessary  to  prove  that  the 
crime  charged  was  not  accidental 489 

Rule  102.  — A  separate  crime  from  that  charged  may 
be  proved  where  it  forms  part  of  the  res  gestce     .     .  400 


CHAPTER  XX. 

The  PRESUiiPTiONS  in  Disfavor  of  Innocence. 

Rule  103.  — "Where  no  motive  for  the  commission  of 
a  crime  is  shown,  the  presumption  of  the  innocence  of 
the  suspected  person  is  strengthened.  But  a  motive 
being  proved  a  presumption  of  guilt  ma}^  arise     .     .  493 

Sub-Rule  1.  —  A  motive  is  proved  hy  showing  the 
desire  of  gain ^  the  gratification  of  passion ,  or  the 
preservation  of  reputation^  accomplished  or  attempted 
or  able  to  be  accomplished  by  the  jjerpetration  of  the 
crime  charged 40c> 


XXVlll  TABLE    OF    RULES. 

PAGE 

EuLE  104.  —  Proof  of  opportunity  possessed  by  the 
accused  to  commit  the  crime  may  raise  an  inference 
that  he  is  the  criminal.  But  another  may  have  had 
a  better  opportunity  than  even  the  accused;  and  the 
possibility  of  such  a  circumstance  should  weaken  the 
presumption         506 

Rule  105.  —  Proof  of  a  former  attempt  by  the  accused 
to  perpetrate  the  same  crime  in  the  same  or  in  a  dif- 
ferent manner  raises  an  inference  of  his  guilt  as  to 
the  latter  crime 507 

Kule  106.  —  Proof  of  preparations  on  the  part  of  the 
accused  to  accomplish  the  crime  charged,  or  to 
prevent  its  discovery,  or  to  aid  his  escape,  or  to 
avert  suspicion  from  himself,  raises  a  presumption 
of   his  guilt 508 

Sub-Rule  1.  — But  Rule  106  does  not  apply  where  the 
preparations  may  have  been  innocent ,  or  for  the  exe- 
cution of  sometJiing  (Liferent  though  illegal^  or  where 
the  crime  for  the  execution  of  which  the  preparations 
were  made  may  have  been  subsequently  frustrated  or 
voluntarily  abandoned 510 

Rule  107.  — Threats  or  expressions  of  ill  will  on  the 
part  of  the  accused  concerning  the  victim  are  rele- 
vant on  the  question  of  his  guilt 511 

SuB-RuLK  1. — But  threats^  though  made  by  the  ac- 
cused, are  no  evidence  of  his  guilt  where  a  person 
other  than  himself  may  have  carried  them  out     .     .512 

Rule  108.  — Possession  by  the  accused  of  the  means 
for  committing  the  crime  charged  raises  a  presump- 
tion of  his  guilt.  And  this  presumption  mny  be 
strengthened  or  weakened  according  to  the  occupa- 
tion, character  or  sex  of  the  accused 513 


TABLE   OF  RULES.  XXIX 

PAGE 

EuLE  109. — The  possession  by  the  accused  of  tlic 
fruits  of  the  crime  raises  a  presumption  of  his  guilt  515 

Sub-Rule  1.  —  la  prosecutions  for  larceny  or  rohhery, 
the  recent  possession  of  the  stolen  property  raises  the 
presumption  that  the  possessor  is  the  thief  .     .     .     .518 

Sub-Rule  2.  —  Bnta  reasonable  explanation  by  the  ac- 
cused of  his  possession  overthrows  the  presumption^ 

•  and  casts  the  burden  on  the  prosecution;  provided  the 
explanation  is  not  inconsistent  with  the  identity  of  the 
property 522 

Sub-Rule  3.  —  What  is  or  is  not  ^^i-ecent"  within 
Sub-Rule  1  depends  upon  thecost^bulk,  or  transfer- 
ability of  tJie  article  or  property  stolen  524 

Rule  110. — From  proof  of  a  sudden  change  having 
taken  place  in  the  life  and  circumstances  of  the  ac- 
cused subsequent  to  the  crime,  a  presumption  of  his 
guilt  may  arise 529 

Rule  111.  —  The  fact  that  the  accused  has  given  false, 
inconsistent  or  contradictory  accounts  of  the  circum- 
stances of  the  crime  or  of  his  relation  to  the  act, 
raises  the  presumption  that  he  is  the  criminal    .     .     530 

Rule  112.  —  Tlvc  fact  that  the  accused  had  attempted  to 
stifle  or  thwart  the  investigation  of  the  crime  raises 
the  presumption  that  he  is  the  criminal    ....     533 

Rule  113. — Fear,  exhibited  by  the  accused,  raises  a 
presumption  of  guilt.  But  no  presumption  can  arise 
•whore  the  fear  may  be  on  account  of  another  act  or 
crime 534- 


XXX  TABLE    OF   EULES. 

PAGE 

EuLE  114.  —  The  flight  of  the  accused,  or  his  attempts 
to  esc:ipe,  raise  a  presumption  of  his  guilt;  unless 
it  appear  that  the  act  was  for  another  reason     .     .     537 

Rule  115.  —  The  destruction,  concealment,  or  fabri- 
cation of  evidence  by  the  accused  raises  a  presump- 
tion of  his  guilt  —  omnia proesumuntur  contra  spolia- 
torem 539 

EuLE  116.  —  Silence  on  the  part  of  the  accused  when 
charges  are  made  against  him  in  his  presence  and 
hearing,  raises  a  presumption  of  guilt ;  unless  the 
charges  are  made  in  the  course  of  a  judicial  interro- 
gation. But  the  failure  of  the  accused  to  produce 
on  his  trial  evidence  in  his  favor  and  within  his  power 
raises  a  presumption  of  guilt 545 


PART  \1. 

GENERAL  RULES. 

CHAPTER  XXI. 

The   General  Rules  as  to  Presumptions. 

Rule  117.  —  A  "  presumption  "  is  a  rule  of  law  that 
courts  or  juries  shall  or  may  draw  a  particular  infer- 
ence from  a  particular  fact  or  from  parLicular  evi- 
dence, unless  and  until  the  truth  of  such  inference  is 
disproved 555 


TABLE   OF   RULES.  XXXI 

PAGE 

Sub-Rule  1.  — A  presumption  of  laxo  is  a  rule  of  laiu 
(hat  a  particular  inference  shall  be  drawn  hu  a  court 
or  juri/ from  a  particular  circumstance 555 

Sub-Rule  2.  — A  presumption  of  fact  is  a  rule  of  law 
that  a  fact  otherivise  doubtful  mar/  be  inferred  from  a 
fact  which  is  proved 555 

Rule  118.  —  A  presumption  must  be  based  upon  a  fact, 
and  not  upon  inference  or  upon  another  presump- 
tion       569 

Rule  119.  — A  presumption  can  not  contradict  facts  or 
overcome  facts  proved 576 

Rule  120. — A  rebuttable  presumption  of  law  being 
contested  by  proof  of  facts  showing  otherwise,  which 
are  denied,  the  presumption  loses  its  value,  unless 
the  evidence  is  equal  on  both  sides,  in  which  case  it 
should  turn  the  scale 576 

Rule  121.  —  And  a  presumption  is  neither  continuous 
nor  retroactive 579 

Rule  122.  —  In  the  case  of  conflicting  presumptions  the 
presumption  of  payment  is  stronger  than,  and  will 
prevail  against,  the  presumption  of  continuance  ;  the 
presumption  of  innocence  is  stronger  than,  and  will 
prevail  against,  the  presumption  of  payment,  of  the 
continuance  of  life,  of  the  continuance  of  things 
generally,  of  marriage,  and  of  chastity  ;  the  presump- 
tion of  knowledge  of  the  law  is  stronger  than,  and 
will  prevail  over,  the  presumption  of  innocence,  and 
the  presumption  of  sanity  is  stronger  than,  and  will 
prevail  over,  the  presumption  of  innocence   .     .     .     582 


TABLE  OF  CASES  CITED. 


A. 

Abbott  V.  Johnson,  47  Wis.  239.     p, 

86, 
Abell  V.  Douglas,  4  Denio,  305.     p. 

858. 
Abraras  v.  Pomeroy,  13  111,  133,     p, 

89. 
Acker  v.  Ledyard,  8   Barb.  514,    p. 

381. 
Ackerman,  Re,  3  Redf,  521.     p.  235, 
Adam  v.  Kerr,  1  B.  &  P.  3G0.    p.  83. 
Adams    v.    Clark,   8  Jones  (L,),  50. 

p.  177, 
Adams  v.  Jones,  39  Ga.  508.     p,  200. 
Adams'  Case,  11  Leg.  Obs.  415.     pp. 

498-509. 
Adams'  Case,  Mrs.,  5  Leg.  Obs.  59. 

p.  498, 
Adams  v.  Leavens,  20  Conn.  73.     p. 

85, 
Addington  v.  Allen,  11  Wend.  374, 

p.  34. 
Aiken  v.  Altoona  Iron  Wks.,  43  Ga. 

404.     p.  58. 
Aikon  V.  State,  10  Tex,  App,  610.     p. 

637. 
Alabama,  etc.,  Co.  v.  Sanford,  30  Ala. 

703.    p.  353. 
Alexander  v.  State,  50  Ga.  478,    p. 

61, 
Alexander  v.  Walter.  8  Gill,  237 ;  50 

Am.  Dec.  688.     p.  404, 
Alford  V.  Baker,  53  Ind.  279.     p,  358. 
Attleborough    v.  Middleborough,   10 

Pick.  378.    p.  350. 
Allen   V.  Lyons,  2  Wash.  C.  C,  475. 

p.  197. 
Allen    r     Public    Administrator,    1 

Bradf.  378,     p.  179. 

c 


Allen  V.  Watson,  2  Hill  (S.  C),  319. 

p.  370. 
Allison  V.  Thomas,  44  Ga.  049,    p,  58. 
Almy  V.  Heed,  10  Cush.  421.     p.  160, 
Alsop  V.  Bontrell,  Cro.  Jac.  511,     p. 

303. 
Alston  r.  Alston,  4  S,  C.  110.     p.  55. 
Alvord  V.  Baker,  9  Wend.   823.     p. 

353. 
Anderson  v.  Blythe,  54  Ga.  507.     p, 

177. 
Anderson  v.  Clay,  1   Stark.  405.     p. 

175. 
Anderson  v.  Parker,  6  Cal.  197.     p. 

197. 
Anderson  v.  State,  42  Ga.  9,    p.  35. 
Anderson  v.  Sutton,  2  Duv.  480.    p. 

50. 
Anderson  v.  Weston,  6  Bing,  (N,  C.) 

296.    pp.  89,  388, 
Andrews  v.  Motley,  12   C.  B.  (x.  s.) 

520.    p,  83. 
Androscoggin    Bk.    v.    Kimball,    10 

Cush.  374.    p.  18. 
Andrus  v.  Foster,  17  Vt.  556.     p.  75. 
Annesley  v.  Earl  of  Anglesea,  17  How. 

St.  Tr.  1430.     p.  142. 
Anonymous,  2  Hayw,  (S,  C.)*]34.     p. 

200. 
Anslcy  v.  Carlos,  9  Ala.  979.     p.  69. 
Apgar's  Case,  37  N,  J.  Eq,  501.     p. 

303. 
Apothecaries'  Co.  v.  Bentley,  Ey,  & 

M.  159.    p.  465, 
Appleby  v.  Brock,  70  ?.In.  315.     p.  30, 
Apthorp  V,  Nerth,  14  Mass.  107.     p- 

34. 
Arayo  v.  Curreel,  1  La.  510.     p.  170. 
Archey  v.  Stephens,  8   Iiul.  411,    p. 

179. 

(xssiil) 


XXXIV 


TABLE    OF    CASES    CITED. 


Ardcn's  Case,  Mrs.,  5  Leg.  Obs.  59. 

p.  508. 
Arent  v.  Squire,  1  Daly,  347.    p.  55. 
Armory  r.  Uelamarie,  1  Smith  L.  C. 

357.    pp.  135,  141,  143,  540. 
Armstrong  v.  Uodojcs,  2  B.  Mon.  70. 

pp.  93,  434,  451,  587. 
Armstrong  v.  Mudd,  10  B.  Mon.  144 ; 

60  Am.  Dec.  545.    p.  34. 
Arnold  v.  State,  9  Tex.  (App.)  40G. 

pp.  537,  539. 
Arnold  v.  Stevens,  24  Pick.  106 ;  35 

Am.  Dec.  305.     p.  405. 
Ashbury  v.  Sanders,  8  Cal.  62.    pp. 

200,  231. 
Ashe  V.  De  Rosset,  8  Jones  (L.),  240. 

pp.  70,  185. 
Ashe  V.  Lanham,  5  Ind.  434.     p.  57. 
Askew  V.  Odenheimer,  1  Bald.  390. 

pp.  152,  153. 
Astley  V.  Astley,  1  Hagg.  Ecc.  720. 

pp.  262,  467. 
Atchison  v.  McCuUoch,  5  Watts,  13. 

p.  248. 
Atchley  v.  Sprigg,  33  L.  J.  (Ch.)  345. 

p.  118. 
Atkins  V.  Warrington,  Best  Ev.  412 ; 

Chitty  Pldg.  616.     p.  194. 
Atkinson  v.  Atkinson,  15  La.  Ann. 

491.    p.  370. 
Atkyns  v.  Horde,  1  Burr.  106.     p.  83. 
Atty.-Gcn.  v.  Deau  of  Windsor,  24 

Beav.  679.    p.  124, 
Atty.-Gen.  u.Emeline  Hosp.,  17  Beav. 

390.    p.  417. 
Atty.-Gen.  v.  Halliday,  26  U.  C.  Q.  B. 

397.    p.  122. 
Atty.-Gen.  v.  Le  Merchant,  2   Term 

Eep.  201.    p.  137. 
Atty.-Gen.  v.  Parnther,  3  Brown  C.  C. 

.441.    p.  179. 
Atzroth  V.  State,  10  Fla.  207.     p.  518. 
Aubert  v.  Walsh,  4  Taunt.  493.     p. 

804. 
Augustine  v.  Doud,  1  111.  (App.)  588. 

p.  35. 
Austin  V.  Austin,  50  Me.  74.    p.  40. 
Austin  V.  Bailc}',  87  Vt.  219.    p.  419. 
Austin  V.  Jordan,  35  Ala.  642.    p.  321. 


Autry  V.  Autry,  37  Ala.  618.     p.  304. 
Avery  v.  Bowden,  6  E.  &  B.  973.     p. 

67. 
Averett  v.  Thompson,  15  Ala.   678. 

p.  358. 
Ayres  v.  Robins,  CO  Gratt.  (Va.)  105. 

p.  36. 

B. 

Babb  V.  Clemson,  10  S.  &  R.  424.     p. 

386 
Baecigalupo's  Case,  33  Gratt,  807.    p. 

459. 
Bach    V.   Cohn,  3  La.  Ann.  103.    p. 

536. 
Bacon  v.  Mclntyre,  8  Mete.   88.     p. 

316. 
Bacon  v.  Smith,  2   La.   Ann.  441.     p. 

1(J7. 
Bagley  v.  McMickle,  9  Cal.  449.     p. 

160. 
Bailey  v.  Bailey,  36  Mich.   185.     pp. 

197,  212,  215. 
Bailey  v.  Bidwell,   13  M.  &  W.   76. 

pp.  77,  79. 
Bailey  v.   Jackson,  16  Johns.  210;  8 

Am.  Dec.  309.    p.  342. 
Bailey  v.  Shaw,   24  N.  H.   300.     p. 

141. 
Bailey  v.  Taylor,    11  Conn.  531.    pp. 

385.  399. 
Baker  v.  Coe,  20  Tex.  429.     p.  55. 
Baker  v.  Melburn,  2  M.  &  W.  853.   p. 

89. 
Baker  v.  Prewett,  04  Ala.  551.    pp. 

34,  419. 
Baker  v.  State,  4  Ark.  56.    pp.  176, 

487. 
Bakewell's  Patent,    In   re,  15  Moore 

P.  C.  385.    p.  72. 
Balaam  v.  State,  17  Ala.  457.     pp.  479, 

499. 
Balance  v.  Underbill,  4  111.  453.    p. 

54. 
Balbec  v.  Donaldson,  2   Grant's   Cas. 

460.    p.  248. 
Baldwin  r.   Bordheimer,  48   Cal.  433 

(1874).     p.  53. 


TABLE    OF    CASES    CITED. 


XXXV 


Bii:i   V.    Taylor,  1  C.   &  P.  '117.     p 

83. 
Bulicw  V.  Clark,    2    Ired.   L.    21.     p 

179. 
Banbury  Peerage,  1  Sim.  &  Stu.  157 

pp.  Ill,  112.  110. 
Bancroft  t>.  Holton,  59  N.  H.  141.     p 

855. 
Bangor  v.  Brunswick,  30  Me.  398.    p 

Bangor,  etc.,  K  Co.  v.  Smith,  47  Me 

45.     p.  61. 
Bk.  V.  Daudridge,  12  Wheat.  64.     p 

60. 
Bk.  of  Ala.  17.  Livingston,  2  La.  Ann 

915.    p.  86. 
Bk.  of  Orleans  v.  Barry,  1  Denio,  116 

p.  77. 
Bk.  of  Washington  i>.  Triplett,  1   Pet 

25.     pp.  17,  73. 
Banks  v.  Bales,  16  Ind.  423.     p.  58. 
Banning  v.  Griffin,  15    East,  293.     p. 

197. 
Barber  v.  Lyon,  22  Barb.  62.    p.  122. 
Bareli  v.  Lytic,  4  La.  Ann.  557.     pp. 

190,  580. 
Barker  v.  Keets,  1   Freem.  251.     p. 

84. 
Barnard  v.  Heydrick,  49  Barb.  62.    p. 

36. 
Earned  v.  Earned,  21  N.  J.  (Eq.)  245- 

p.  320. 
Barnes  v.   Mobley,  21  Ala.   232.     p. 

404. 
Barnes  V.  Webster.   16  Mo.  258;   57 

Am,  Dec.  232.    p.  SOS. 
Barnett  v.  Torrance,  26  Ala.  403.     pp. 

820.  421,428,  424. 
Barnett  v.  Wolf,  70  111.  76.    p.  35. 
Barney  v.  Seeley,   88   Wis.  381.    p. 

142. 
Barns    v.  Hatch,   3  N.   H.   304.     p. 

804. 
Barnum  v.  Barnum,   42  Md.  253.    p. 

106. 
Enrony  of  Sale,  The,  1  H.   L.  Cas., 

607.    p.  117. 
Barton  v.   State,    18   Ohio,   221.     p. 

483. 


Barrett  v.   Williamson,    4    ilcLoan, 

589.    pp.  17,  73. 
Barrington  v.  Bk.   of  Washington,  14 

S.  &  R.  422.     p.  380. 
Bassplt  V.  Porter,  10  Cush.  418.     p.  55. 
Bastard  v.  Truch,  3   Ad.  &  Ell.  451. 

p.  35. 
Battin  v.  Bigelow,    1  Pet.  C.  C.  453. 

p.  192. 
BatLjo  V.  Mobile,  9  Ala.  234 ;  44  Am. 

Dec.  438.     p.  68. 
Battles  V.  Hoi  ley,  6  Me.  145.     p.  321, 
Baiii^han  v.  Graham,  1   How.   (Miss.) 

220.     p.  370. 
Barne's  Case,  5  Coke,  986.     p.  119. 
Baxter  v.  Durch,  20  Me.  434  ;  50  Am. 

Dec.  602.    p.  7. 
Bayliffe    v.   Butterworth,    1   Ex.  23. 

pp.     16,  75. 
Beale  v.  Com.,  25   Pa.  St.  11.     p.  37. 
Beall  V.  Leverett,  82  Ga.  105.     p.  81. 
Beall  V.  Lynn,  9  Har.  &  Johns.  336. 

p.  427. 
Beals  V.  Clark,  13  Gray,  18.    p.  263. 
Bean  v.  Briggs,  4  Iowa,  464.    p.  370. 
Beamau  v.  Kussell,   20  Vt.   205;  49 

Am.  Dec.  775.     pp.  882,  388, 
Bcasney,  Re,  L.  R.  7  Eq.  498.    p.  235. 
Bi'atty  V.  Gregory,  17  Iowa,  100.    pp. 

17,  73. 
Beatty    v.  Michon,  9  La.  Ann.  102. 

p.  261. 
Beavers  v.  State,  58  Ind.  530.     p.  552. 
Becton  v.  Ferguson,  22  Ala.  599.     p. 

303. 
Bedard  v.  Hall.  44  111.  91.    p.  58. 
Bedell  V.    Carll,    33   N.   Y.  581.     p. 

347. 
Beam  an  v.  State,  5  Blackf.  1G5.    p. 

35. 
Beers  v.  Broome,  4  Conn.  247.     p.  303. 
Beeson  v.  Wiley,  28  Ala.  575.     p.  69. 
Belkin  v.  Rhodes,  76  Mo.  643.     p.  30. 
Bell  V.  Frankis,  4  Man.   &  Gr.  447. 

p.  134. 
Bell  V.  Hagarstown  Bk.,  7  Gill,  227. 

p.  ISO. 
Bell  V.  Ilearnc,  10  La.  Ann.  515.     p. 

124. 


XXXVl 


TABLE   OF   CASES    CITED. 


Bell  V.   Kennedy,  L.  11.   1   Sc.  App. 

820.    p.  173. 
Bel]  V.  Young,  1  Grant's  Cas.  175.    p. 

163. 
Bellas  V.  Levan,  4  Watts,  295.    p.  308. 
Belo  V.  Spach,  85  N.  C.  92.    p.  336. 
Belt  V.  Davis,  1  Cal.  134.     p.  85. 
'Beltzhover  v.   Blackstock,   3    Watts, 

26.    p.  77. 
Bemis  v.  McKenzie,  13  Fla.  553.    p. 

372. 
Bender  v.  Montgomery,  8  Lea,  586. 

p.  320. 
Bendlt  v.   Auditors   Wayne   Co.,    20 

Mich.  176.    p.  49. 
Benhams  Trusts,   Re,  87  L.  J.  (Ch.) 

205.    p.  201. 
Bennett  v.  Libhart,  27  Mich.  489.    p. 

255. 
Bennett  v.  Walker,  23  111.  97.    p.  304. 
Benning  v.  Nelson,  23  Ala.  801.     p. 

304. 
Bensley  v.  Atwill,  12  Cal.  231.    p.  303. 
Benson  v.  Olive,  2  Strange,  920.     p. 

194. 
Benthall  v.  Judkins,  13  Mete.  265,     p. 

90. 
Bentley's  Appeal,  99  Pa.  St.  504.     pp. 

819,  336. 
Bergin  v.  State,  33  Ohio  St.  115.    p. 

459. 
Berry  v.  Alderman,  14  C.  B.  95.    p.  77. 
Berry   v.   Anderson,   22  Ind.  36.     p. 

419. 
Berry  v.  Philpot,  2  Myl.  &  K.  349. 

p.  113. 
Berryman  v.  Wise,  4  Term  Rep.  360. 

p.  49. 
Berthelemy  v.   Johnson,   3  B.   Mon. 

90;  38  Am.  Dec.  179.    p.  404. 
Belts  V.  Bagley,  12  Pick.  572.    p.  30. 
Betts  V.  Jackson,  6  Wend.  173.    p. 

147. 
Bilberry  v.  Mobley,  20  Ala.  260.    p. 

69. 
Bird  V.  Inslee,  23  N.  J.  (Eq.)  303.    p. 

320. 
Birlwy  v.  McMakin,  04  Pa.   St.  343. 

p.  3i0. 


Birmingham,  Borongli  of,   v.  Ander- 
son, 40  Pa.  St.  507.    p.  403. 
Bishop  V.  Chambre,   3  C.  &  P.  55. 

pp.  388,  890. 
Bishop,  Re,  1  Sw.  &  Tr.  303.    p.  230. 
Bissell  V.  Jaudon,   16  Ohio  St.  496. 

p.  333. 
Bissell  V.  Morgan,  11   Cush.  198.    p. 

77. 
Bissell  V.  Nooney,  33  Conn.  441.    p. 

84. 
Bizzell  V.  Williams,  8  Ark.  138.    p.  34. 
Black  V.  Ward,  27  Mich.  191.     p.  10. 
Black  V.  Wright,  9  Ired.  L.  447.    pp. 

126,  127. 
Black  V.  Carpenter,  3  Bast.  350.    p. 

337. 
Blackburn  v.  Crawford,  3  Wall.  175. 

p.  106. 
Blackwell  v.  Blackwell,  33  Ala.  571. 

p.  320. 
Blade  v.  Noland,  12  Wend.  173.    p. 

157. 
Blair  v.  Chapman,  62  Ala.  58.    p.  34. 
Blaisdell  v.  Cowell,  14  Me.  370.     p.  93. 
Blair  v.  Marks,  27  Mo.  579.    p.  403. 
Blair  v.  Stale,  52  Ala.  344.    p.  39. 
Blake  v.  Fash,  44  111.  304.    p.  160. 
Bhike  V.  State,  3  Tex.  App.  581.    p, 

537. 
Blanchard  v.  Lambert,  43  Iowa,  228 

pp.  93,  435. 
Blanchard  v.   Young,   11   Cush.  341 

p.  54. 
Blanch et  v.   Foster,   2  Ves.   Sr.  205 

p.  145. 
Blimey  v.  Sergeant,  1  Mass.  335.    p 

280. 
Blatch  V.  Archer,  Cowp.  63.  p.  120 
Bliss  V.  Brainard,  41  N.  H.  256.  p.  20 
Blount  V.  State,  49  Ala.  381.  p.  545 
Body  V.  Jewson,  33  Wis.  402.  p.  174 
Boehm  v.  Wood.  p.  318. 
Bogue  V.  Bigelow,  29  Vt.  179.  p.  248 
Bolster  ■;;.  Cushman,  84  Me.  428.     pp 

98,  276. 
Bond  V.  Searrell,  3  Burr.  1773.     p.  87, 
Bond  V.  State,  23  Ohio  St.  849.    p 

459. 


TABLE    01='    CASKS    CITED. 


XXXVU 


Bond  V.  Warren,  8  Jones  L.  191.     p. 

481. 
Bonnerr.  Young,  68  Ala.  35.     p.  310. 
Bonsall  V.  State,  35  Ind.  400.     p.  483. 
Boon  V.  Pierpont,  28  N.  J.  (Eq.)     p. 

808. 
Booth  V.  Booth,  7   Conn.  350  (1829). 

p.  53. 
Boothby  v.  Stanley,  34  Mo.  515.    p. 

882. 
Boswell's   Case,    20  Gratt.   8G0.    p. 

459. 
Bosworth  V.  Vandewalker,  53  N.  Y. 

597    p. 23. 
Bott  V.  Wood,  56  Miss.  136.    pp.  134, 

152,  153,  154. 
Boulware   v.  Witherspoon,   7  Kich. 

450    p.  55. 
Bowden  v.  Evans,  2  Hayw.  (S.  C.)  222. 

p.  200. 
Bowden  v.  Henderson,  2   Sra.  &    G. 

800.     p.  237. 
Bowen  v.  Bowen,  2Bradf.  336.     p.  75. 
Bowie  V.  Poor  School  Soc.,  75  Va. 

300.    p.  344. 
Bowles  V.  Bingham,  8  Munf.  589.     p. 

108. 
Bowley  v.  Barnes,  8  Q.  B.  1037.    p. 

50. 
Bowman   v.  McElroy,   15  La.  Ann. 

903.    p.  20. 
BoycetJ.  L;ike,  17  S.  C.  481.     p.  308. 
Boyoe«.  Owens.  1  Hill,  10.    p.  418. 
Boyd  W.Harris,  2  MJ.  Ch.   210.    p. 

31.5. 
Boyd  V.  Mclver,  11  Ala.  822.    pp.  77, 

79. 
Boyd  V.  Roed,  6  Hcisk.  631.     p.  352. 
Boyers  v.  Pratt,  1  Humph.  00    p.  14. 
Boykin  v.  Boykin,  70   N.  C.  202.     p. 

EriKken  v.  Miller,  4  W.  &  S.  102.     p. 

347. 
Brackenridgo  v.  Di.wson,  7  Ind.  383. 

p.  37. 
Bradford's  Case,  Phill.   Cas,    p.  511. 
Bradish  v.  Bliss,  85  Vt.  826.     p.  438. 
Bradlaugh  v.  DeEeu,  L.  Pv.  3  C.  P., 

28  J.    p.  83. 


Bradley  v.   Bradley,   4   AVliart.  17:]. 

pp.  200,  201. 
Bradley  v.  The  Now  World,  1  Cal. 

875.    p.  420. 
Bradley  v.  Mut.  B-n,  L.  Ins.  Co.,  3 

Lans.  341.     p.  358. 
Braithwaito  v.   Coleman,  1   Uarr.  it 

Wall.  229.     p.  133. 
Brandon  v.  Snows,  2  Stew.  (Ala.)  255 

(1830).    p.  53., 
Brandon  r.   Woodthorpo,   10    Bcav. 

403.    p.  303. 
Brcck  V.  Cole,  3  Sandf.  80.     p.  89. 
Breckinridge  v.  Walters,  4  Dana,  027. 

p.  405. 
Breed   v.   Mitchell,  48   Ga.   533.     p. 

102. 
Breed  v.  Pratt,  18  Pick.  115.     p.  280, 
Breiden  v.  Paff,  12  S.  &  R.  (Pa.)  430. 

pp.  448,  583. 
Brennan  v.  Shinklo,   89  111.  GOl.     p. 

35. 
Brent  v.  State,  43  Ala.  297.    pp.  10, 

454. 
Breton  v.  Cope,  1  Peake,  43.     p.  304. 
Brewer  v.  Browne,   68  Ala.  210.     p. 

67. 
Bicwer  v.  Knapp,  1  Pick.  337.    p. 

350. 
Brewster  v.  Striker,  2   N.  Y.   19.     p. 

55. 
Brice  v.  Smith,  Willis,  1.     p.  84. 
Bridgeton  v.  Bennett,  23  Me.  4J0.    p. 

50. 
Brien  v.  Hart,  G  Humph.  131.     pp.  27, 

29. 
Brig.^s  V.  Taylor,  35  Vt.  57.     pp.  47, 

40. 
Brigg's  Appeal,  93  Pa.  St.  485.     p. 

821. 
Brinihall  v.  Van  Campen,  8  Minn.  13. 

p.  370. 
Brinyea  v.  State.  5  Ala.  241.     p.  459. 
Bri:jbaMe  v.  Ducres,  5  Taunt.  1-13.    p. 

6. 
British,  etc.,  Assur.  Co.,  In  re,  1  De 

G.  J.  &  S.  3.5.     p.  82. 
Broad  well  v.  Stiles,  8  K  J.  (L.)  158. 

p.  100. 


XXXVUl 


TABLE    OF    CASES    CITED. 


Brobst  V.  Brock,   10  ATall.   C19.     p. 

316. 
Brock  V.  Savage,  31  Pa.  St.  422,     pp. 

SOS,  408. 
Brock  V.  State,  26  Ala.  104.     p.  48G. 
Brombridge  v.  Osborne,  1  Stark.  374. 

p.  347. 
Brooke  v.  Townshend,  7  Gill,  31.     p. 

179. 
Brooks   V.  Douglass,  32  Cal.  209.    p. 

p.  35. 
Brooks  V.  Walker,  3  La.  Ann.   150. 

39. 
Brotherline  v.  Hammond,  69  Pa,  St. 

128,    p.  248. 
Broughton  v.  Eandal,  Cro.  Eliz.  503. 

p.  247. 
Brown  v.  Austin,  35  Barb.  341.    p. 

304. 
Brown  v.  Beers,  6  Conn.  215.     p.  5. 
Brown  v.  Benight,  3  Bluckf.  39;   23 

Am.  Dec.  372.    p.  250. 
Brown  v.  Burnham,  28  Me.  C8.     p. 

173. 
Brown  V.  Connelly,  21  Ark.  140.    p. 

84. 
Brown  v.  Connelly,  5  Blackf.  390.     p. 

47. 
Brown  v.  Gill,  49  Ga,  549.     p.  34. 
Brown  v.  Haak,  48  Mich.  229.     p.  36, 
Brown  v.  Jewett,  18  N.  H.  230.     p. 

212. 
Brown  v.  Kentfield,  50  Cal.  129.    p. 

35. 
Brown  v.  Kimball,    12  Vt.  617.    p. 

507. 
Brown  v.  King,  5  Mete.  173.    p,  163. 
Brown  v.  McKiiiney,   9  Watts,  565; 

86  Am.  Dec.  139,    p.  403, 
Brown  v.  Motz,  33  111.  339.    p.  248. 
Brown  V.  Neilson,  1  Caines,  625.    p. 

227. 
Brown  v.  Oattis,  55  Ga.  416,  p.  123, 
Brownell  v.  Palmer,  22  Conn.  121.     p. 

C7. 
Brown  V.  Prugle,   4   Hare,    124.    p. 

803. 
Brown  V.  San  Francisco  Gas  Co.,  58 

Cal.  426.    p.  358. 


Brown  v.  Schock,  77  Pa.  St.  471.    p. 

121. 
Brown  v.  Wood,  17  Ma?s.  68.     p.  40, 
Brubaker  v.  Taylor,  76  Pa.  St.  83.     p. 

322. 
Bruco  V.   Atkinson,  22  Ark.  363.     p. 

439. 
Bruce  v.  Holden,  21  Pick.  187.    p.  54. 
Bruce  v.  Nicopulo,  11  Ex.  129.   p.  56. 
Brunswick  v.  McKean,  4  Me.  508.    p, 

569. 
Bryant  v.  Stillwell,  24  Pa.  St,   pp.  314, 

122,  140. 
Bryson  v.  Chisholm,  56  Ga.  596.    p.  35. 
Buchaiiiian  v.  Rowland,  6  N.  J.  L.  721. 

p.  310. 
Buck  V.  Buck,  6  Ecc.  &  Mar.  581.     p. 

387. 
Buckeye,  The,  7  Biss.  23.     p.  102. 
Buckingham   v.  Gregg,  19   Ind.   401. 

p.  358. 
Buckmaster  v.  Job,  15  111.  329.     p.  54. 
Buckner  v.  Bush,  1  Duv.  394.    p.  54- 
Bueld  V.  Bettison,  21  Ark.  583  (1860). 

p.  53. 
Budd  V.  Brooke,  3  Gill  (Md.),  198; 

43  Am.  Dec.  321.    p.  404. 
Bullen  V.  Arnold,  31  Me.  583.     p.  36. 
BuUen  v.  Kunnells,  2  N,  H.  255;   9 

Am.  Dec.  55.      p.  404. 
Bundy  V.  Hart,  46  JIo.  462.    p.  373. 
Bunker  v.  Hand,  19  Wis.  254.     p.  40. 
Bunker  v.  Shed,  8  Mete.  150.    p.  90. 
Burdge  v.  Smith,  14  Cal.  380.     p.  420. 
Burford  v.  McCue,  53  Pa.  St.  431.    p, 

255,  257. 
Burge  V.  State,  62  Ga.  170.     p.  35. 
Burling  v.  Patterson,  9  C.  &  P,  417, 

p.  83, 
Bunihara  v.  Ayer,  35  N.  H.  351.     p, 

386, 
Burnham  v.  Webster,  19  Me.  232,     p. 

77. 
Burr  V.  Sim,  4  Whart.  150;  S3  Am. 

Dec.  50.    pp.  202,  230. 
B  irr  V.  Williams  23  Ark.  244.     p.  74. 
Burrett U.Dickson,  8  Cal.  113.   pp.  19, 

264. 
Burton  v.  Blin,  23  Vt.  152.     p,  23. 


TAIiLE    OF   CASES    CITED. 


XXXiX 


Burton  V.  Mason,  23   Iowa,   8ri2.     p. 

Burlon    v.  Scott,    3    Rand.  389.     p. 

280. 
Bury  V.  Philpot,  2  Myl.  &K.  349.     p. 

112. 
Busli  V.  Guion,  6  La.  Ann.  797.     p. 

1-18. 
Bush  V.  Harrison,  70  III.  480.     p.  35. 
Bush  V.  Seaton,  4  Ind.  622.     p.  420. 
Bush  V.  Stato,  52  Ala.  13.     p.  39. 
Butcher  V.  Bk.  of  Brownesville,  2  Kas. 

80.    p.  27. 
Butler  V.  Ford,  1  Cr.  &  M.  603.     p.  47. 
Buller  V.  Ins.  C-^.,   14  Ala.  777.     p- 

804. 
Butler  V.  Livingston,  15  Ga.  5G5.     p" 

6. 
Butler  V.  Mountgarvet,  7  U.  L.   Cas. 

617.    p.  89. 
Butler  V.  Winona  Mill  Co.,  28  Minn. 

205.     p.  36. 
Byrd  v.  Fleming,  4  Bibb,  145.     p.  2G1. 
Byrd  v.  Tucker,  3  Ark.  451.    p.  89. 

.  c. 

Cabot  V.  Given,  45  Me.  144.    p.  60. 
Cadge,  Re,  L.  R.   1  T.    &  D.  543.     p. 

388. 
Cuhalan  v.  Monroe,  70  Ala.   271.    p. 

358. 
Calais   Steamboat  Co.  v.   Van  Pett, 

2  Black,  273.    p.  23. 
Caldwell  V.   Gamble,  4  Watts,   292. 

p.  89. 
Caldwell  V.  State,  5  Tex.  19.     p.  466. 
Call  V.  Allen,  1  Allen,  137.     p.  461. 
Callaman  v.  Hurley,   93  U.   S.  387. 

p.  5G3. 
Callisou  V.  Autry,  4   Tex.   371.      p. 

34. 
Cainboise   v.  Moffet,  2  Wash.  C.  C. 

104.     p.  14. 
Cambridge  v.  Lexington,  17  Pick.  222. 

p.  403. 
Cameron  v.   North  W.  Ins.  Co.,   29 

Hun,  470,    p.  370. 


Campbell   v.    Hays,  1    Ind.   517.    p. 

353, 
Campbell  v.   Miller,   3   3Iart.  (x.  s.) 

149.    p.  390. 
Campbell  v.  Reed,   24  Penn.  St.  498. 

p. 193. 
Campbell  v.  Smith,  3.  Halst.  (N.  J.) 

140 ;  14  Am.  Doc.  400.     p.  405. 
Campbell  v.  Wallace,   40  Mich.  320. 

p.  248. 
Canal  Bk.  v.  Templeton,  20  La.  Ann. 

141.    p.  77. 
Cancemi  v.  People,  10  N.  Y.  501.     p. 

443. 
Cannon  v,  Mathis,  10  Heisk.  575.    p, 

342. 
Canonie  v.  Fowler,  3  Wend.  173.    p. 

870. 
Caress  v.  Tattersall,   2  !Man.   &  Gr. 

891.    p.  388. 
Cargile  v.  Wood,  63  Mo.  56.    pp.  104, 

176. 
Carneal  v.  Day,   Litt.  Scl.   Cas.  492- 

p.  142. 
Carotti  v.  State,   42    Miss.    334.    p. 

450,  586. 
Carr  v.  Miner,  92  HI.  604.     p.  3-5. 
Carroll  v.  Bowie,  2  H.  &  McU.  457. 

p.  347. 
Carroll   v.  Carroll,   20  Tex.  731.     p. 

93,  435. 
Carroll  v.  Com.,  84  Pa.   St.  107.     p. 

488. 
Carroll ».  Peake,  1  Pet.  78.     p.  41. 
Carroll  v.  Quynn,  13  Md.  379.     pp.  99, 

440. 
Carroll  v.  State,  23  Ala.  28.    pp.  2G6, 

409,  473. 
Carson  v.  Cent.  R.   Co.,  35  Cal.   325. 

pp.  94,  277,  436. 
Carson  v.  Lineberger,  70  N.  C.  173. 

p.  344. 
Carter u.  Reals,  44  N.  H.  408.     p.  120. 
Carter  u.  Blanton,  33  Miss.  2'Jl.     p. 

86. 
Carter  u.  Jones,  5  Ired.  (Eq.)  190;  19 

Am.  Dec.  424.     p.  34. 
Cameron  v.  State,  14  Ala.  546 ;  48  Am.   I  Carter  v.  State,  12  Tex.  App.  500.    p. 


Dec.  111.    pp.143,  583. 


459. 


xl 


TABLE    OF    CASES    CITED. 


Carter  r.  Tiiiicum  Fishing  Co.,  77  Pa. 

St.  310.    404. 
Cartwright  v.    Cartwright,    1   Phill. 

190.    p.  179. 
Gary  v.  Gerrish,  4  Esp.  9.    p.  304. 
Case  V.  Case,   17    Cal.  598.     p.  451, 

5S7. 
Case  V.  Colston,  1  Mete.  (Ky.)  145. 

p.  54. 
Casey  v.  State,  6  Mo.  646.    p.  480. 
Casey  r.  Inloes,  1   Gill,  430;  39  Am. 

Dec.  658.    p.  404. 
Castanedou.  State,  7  Tex.  (App.)  584. 

p.  36. 
Casteel  v.  Casteel,  38  Ark.  477.    p. 

34. 
Castleberry  v.  Pearce,  2  Stew.  &  P. 

14.    p.  34. 
Cates  V.  Loftus,  3  A,  K.  Marsh.  202. 

p.  248. 
Catlin  V.  Hansen,  1  Duer,   323.    p. 

77. 
Cauble  V.  R_van,  26  Ind.  207.     p.  75. 
Candill  v.  Tbarp,  1  G.  Greene,  94.     p. 

36. 
Caujolle   V.  Ferris,  23  N.  T.  90.     p. 

108. 
Caunce  v.  Ptigljey,  3  M.  &  W.  68.    p. 

34. 
Centre  Bank  v.  Heydom,  48  K    T, 

200.    p.  308. 
Cesure  v.  State,  1  Tex.  App.  19.    p. 

480. 
Chaffee  v.  U.  S.  18  Wall.  510.     p. 

1S8. 
Chamberlain  v.   Darrington,  4  Port. 

515.     p.  34. 
Champion  v.  Sessions,  2  Nev.    271. 

p.  36. 
Chaplin  v.  La3'ton,  18  Wend.  407 ;  31 

Am.  Dec.  382.    p.  6. 
Chandler  v.  Barrett,  21  La,  Ann.  58. 

p.  179. 
Chapin  v.   Dobson,  78  N.  Y.  74.    p. 

870. 
Chapman  v.  Cooper,  5  Rich.  (L.)  452. 

pp.  201,  448,  449,  583,  584. 
Cliapman  v.  lloward,  3  Lea,  303.     p. 

65. 


Chapman   v.  Loomis,  36   Conn.  459. 

p.  320. 
Chapman  v.  Mayor  of  Macon,  55  Ga. 

500.     p.  72. 
Chapman  v.  Mcllwrath,  71   Mo.  44. 

p.  93. 
Chase  v.  Alliance  Ins.  Co.,  9  Allen, 

311.    p.  870. 
Chase  v.  Chase,  6  Gray,  157.     p.  263. 
Chase  v.  Heaney,  70  111.  208.     p.  58. 
Chase  v.  People,  40  111.  807.    p.  459. 
Cheney  v.  Watkins,  1  H.  &  J.  (Md.) 

327.    p.  403. 
Chess  V.  Chess,  1  Pa.  St.  32.    p.  303. 
Child  V.  Moore,  6  N.  H.  33.    p.  344. 
Childrens  v.  Saxby,  1  Vern.  207.    p. 

115. 
Childs  V.  Dolan,  5  Allen,  319.     p.  564. 
Chiles  V.  Conley,  2  Dana,  21.     p.  403. 
Chislie's  Case,  9  Lg.  Obs.  180.    p.  499. 
Choate  v.  Ilathaway,  73  111.  519.     p* 

35. 
Chrisman    v.    Gregory,    4    B.   Mon. 

474.     p.  30. 
Christ  ■;;.  People,  3  Col.  394.     p.  35. 
Christmas  v.  Whonyates,  3  Swab.  & 

Tr.  81.    p.  387. 
Christopher  v.  Sparks,  2  Jac.  &  W. 

235.     p.  316. 
Church  V.  Gilman,  15  Wend.  656.     p. 

304. 
Church   V.  Rowoll,  49   Me.  367.     p. 

173. 
Churchward  v.  Coleman,  L.  R.  1  Q.  B. 

173.    p.  538. 
Cicely  v.  State,  13  S.  &  ]\I.  220.    p. 

510. 
Citizens  Mut.  Ins.  Co.  v.  Sortiveet,  8 

Allen,  217.     p.  61. 
City  of  Alleghany  v.  Nelson,  25  Pa. 

St.  332.    p.  55. 
Citj'of  Logansport  i;.  Wright,  25  Ind. 

5"l2.    p.  54. 
City  of  Louisville  v.  Ilyatt,  2  B.  Mon. 

180.     p.  55. 
City  of  New  Orleans  v.  Gottschalk, 

11  La.  Ann.  6.     p.  54. 
City  of  New  Orleans  v.  Ilalpin,  17 

La.  Ann.  185.    p.  54. 


TABLE    OF    CASES    CITED. 


xli 


City   S;iv.  Bk.  v.  CiJwell,  20   Barb. 

3:^5.     p.  S72. 
Clallin  V.  Mulono,  9  B.  Mon.  48G;  CO 

Am.  Doc.  525.    p.  404. 
Clnpp  V.  Thom-18,  5  Allfii,  158.     p.  54 
Chiridge  v.  Kleet,  15  Pa.  St.  255.    p 

89. 
Clark  t'.  Alexander,  8  Scott  N.  R.  IGl 

p.  175. 
Clark  V.  Dutcher,  9  Cow.  G74,     p.  557 
Clark  V.  Eckstein,  22  Pa.  St.  507.     p 

.390. 
Clark  V.  Hopkins,  7  Johns.  55G.     p, 

822. 
Clark  V.  Miller,  9  AVend.  628.    p.  123 
Clark  V.  Pease,  41  N.  II.  414.     p.  77 
Clark   V.  Perriam,  3   P.  Wms.  334. 

pp.  102,  276. 
Clark  V.  Rogers,  2  Me.  147.    p.  381 
Clark  V.  Schneider,  17  Mo.  295.     p, 

78. 
Clark  V.  Simmons,  4  Port.  14.     p.  345, 
Clark  V.  State,  8  Tex.  App.  350.     p 

459. 
Clark  V.  "Wardwell,  55  Me.  61.    p.  55, 
Clarke  v.  Canfield,  15  N.  J.  (Eq.)  119 

p.  202. 
Clarke    v.   Cummings,  5  Barb.  855, 

pp.200,  215. 
Clarke  v.  Diiteher,  9  Cow.  674.     p.  6 
Clarke  v.  Magruder,  2  H.  &  J.  77.    p 

68. 
Clarke  V.  Maynard,  1  Madd.  &  Geld, 

8(14.    p.  115. 
Clarkson  v.  Eichbaum,  2  Grant's  Cas, 

130.    p.  303. 
Clayton  v.  Wardell,  4  N.  Y.  230.     pp, 

451,  5-7. 
Clem  V.  K  Co.,  9  Ind.  489.     p.  18. 
Clements  v.  Hood,  67  Ala.  4G2.     p. 

3^4. 
Clements  v.  Larndman,  2G   Ga.  401. 

p.  84. 
Cliirord  V.  Parker,  2  Man.  &  Gr.  910. 

p.  388. 
Clifton  r.  U.  S.,  4  IIow.24G.   pp.  122, 

130,  132. 
Clinton   V.  Kidwell,  82   111.  427.     p. 

279. 


Clasmndouc  r.  Carroll,  18  C.  C.  33. 

p.  82. 
Cloud  V.  Clinkenbard,  8  B.  Mon.  397; 

48  Am.  Dec.  897,    p.  S04. 
Clutr  V.  Mut   Ben.   L.  Ins.  Co.,  13 

Allen,  308.    pp.  5,  305. 
Clunnes   v.  Pezzey,   1   Camp.  8.     p. 

122. 
Cobb  V.  Newcomh,  7  Iowa,  43.     p.  54. 
Cobleigh  r.  Young,  15  N.  H.  493.    p. 

55. 
Coblo  V.  State,  31  Ohio  St.  100.     p. 

486. 
Cochran   v.  Arnold,  58   Pa.  SU  599. 

p.  36. 
Cockayne   v.  Sumner,  23  Pick.  117. 

p.  5. 
Cockins'  Case,  2  Lewin,  235.     p.  525. 
Cofield  V.  McClelland,  18  Wall.  331. 

pp.  33,  34. 
Coil  V.  Willis,  18  Ohio,  28.     p.  29. 
Coit  V.  Starkweather,   8   Conn.  203. 

p.  2G0. 
Colburn  v.  Averill,  30  Me.  310;  50 

Am.  Dec.  630.     p.  70, 
Coles  V.  Bowne,  10  Paige,  526.     p.  84. 
Coles  V.  Kelsey,  2  Tex.  541 ;  47  Am. 

Dec.  6G1.    p.  2G1. 
Coleman  v.  Lane,   26   Ga.   515.     p. 

321. 
Coleman  v.  People,  55  N.  Y".  81.    p. 

488. 
Collins  V.  Loyal,  56  Ala.  403.     p.  30. 
Collins  V.  Tenney,  7  Johns.  279.     pp. 

31G,  318. 
Colsell  V.  Budd,  1  Camp.  27.    pp.  106, 

823. 
Colvin  V.  Worford,  20  Md.  353.     p. 

404. 
Col  well   r.  Prindle,  11  W.  Va.  307. 

pp.  322,  323. 
Comfort  V.  People,  54  111.  404,     p. 

518. 
Commercial    Bk.   v.  Lum,   7    How. 

(Miss.)  411.    pp.  381.390. 
Comm'rs  v.  Hanion,   1  N.  &   McC. 

5-34.    p.  381. 
Comm'rs  of  Brown  Co.  v.  JCoberts.  22 

Kas,  702.    p.  So. 


xlii 


TABLE    OF    CASES    CITED. 


Comni'rs  of  Saline  Co.  v.  Anderson, 

20  Xas.  298;  27  Am.  Eep.  171.     p. 

48. 
Commonwenlth    v.   Bagloy,  7   Pick. 

270.    pp.  7,  458. 
Com.  V.  Balkom,  3  Pick.  281.    p.  34. 
Com.  V.  Blood,  97  Mass.  5;:8.    p.  33. 
Com.  V.  Brown.  123  Mass.  410.     p.  44. 
Com.  V.  Burk,  11  Gray,  437.  pp.  291, 

296. 
Com.  V.  Butler,  1   Allen   (Mass.),  4. 

p.  438. 
Com.   V.   Carpenter,    100  Mass.  204. 

p.  504. 
Com.  V.  Clark,  14  Gray,  367.     p.  551. 
Com.  V,  Conner,  5  Leigh,  718.     p.  465. 
Com.  V.  Dana,  2  Mete.  (Mass.)  329. 

p.  445. 
Com.   V.  Dunn,   58   Pa.  St.  17.     pp. 

268,271,471,473. 
Com.  V.  Engan,  103  Mass,  71.     p.  205. 
Com.    V.  Eddy,   7   Gray  (Mass.)  583. 

p.  459. 
Com.  V.  Fowler,  10  Mass.  290.     p.  47. 
Com.  V.  Fuller,  2  Wheel.  Cr.  Cas.  223. 

pp.  499,  589. 
Com.  V.  Galavan,  9  Allen,  271.    p.  545. 
Com.  V.  Gannon,  97  Mass.  547.  p.  296. 
Com.  V.  Garth,  3  Cal.  6.    p.  55. 
Com.   V.  Goodwin,   14  Gray,  55.     p. 

531. 
Com.   V.  Hardiman,  9   Gray  (Mass.), 

361.     p.  447. 
Com.   V.   Harlow,  110  Mass.  411.     p. 

532. 
Com.  V.  Heath,  11  Gray,  303.    p.  459. 
Com.  V.  Horton,  2  Gray,  354.    p.  492. 
Com,  V.  Kelly,   10  Cush.  09.     p.  564. 
Com.  V.  Kimball,  7  Mete.   304.     p. 

463. 
Com.   V.   Kimball,   24  Pick.  (Mass.) 

373.    p.  415. 
Com.  V.  Kinney,  120  Mass.  387.     pp. 

300,  549. 
Com.  V.   Lahey,   14   Gray,   91.    pp. 

492,  504. 
Com.  V.  Lewis,  1  Mete.  153.     pp.  292, 

290,  300. 
Com.  V.  Low,  13  Pick.  409.    p.  405. 


Com.  V.  Mead,    10   Allen,  39S.     pp. 

279,  282. 
Com.   V.  Merriam,   14  Pick.  518.     p. 

492. 
Com.   V.   Millard,  1  Mass.  6.     p.  518. 
Com.   V.  Montgomery,   11   Mctc.  534. 

p.  529. 
Com.  V.  Murphy,    2  Gray,    511.     p. 

292. 
Com.  V.  McCue,  16  Gray,  226.     p.  49. 
Com.  V.  Neal,  10  Mass.  152;  1   Lead. 

Crim.  Cas.  81.     pp.  294,  279. 
Com.  V.  Eogers,  7  Mete.  500.     p.  459. 
Com.  V.  Rowc,  14  Gray,  47.     p.  564. 
Com.  V.  Sheperd,  6  Binney,  283.     p. 

118. 
Com.   V.  Strieker,   1  Browne,  xlviii. 

p.  118. 
Com.   V.  Sturtevant,    117  Mass.   122. 

p.  491. 
Com.  V.  Thompson,  11  Allen,  25.    p. 

212. 
Com.  V.  Thrasher,  11  Gray,  450.     p. 

492. 
Com.  V.  Thurlow,  24  Pick.  374.     pp. 

463,  564. 
Com.   V.  Walker,  13   Allen,  570.     p. 

549. 
Com.   V.  Webster,  5  Cush.  316.     pp. 

120,  2G7,  442,  409,  496,  544. 
Com.  V.  Welch,  97  Mass.  594.    p.  291. 
Com.  V.  Wentz,  11   Ashm.  269.     pp. 

116,  118. 
Com.  V.  Williams,  2  Cush.  5S2.     p. 

513. 
Com.  V.  Williams,  6  Gray,  1.     p.  564. 
Com.  V.  Wilson,  2  Cush.  590.     p.  486. 
Com.  V.  York,  9  Mete.  93.     pp.  266, 

4G9. 
Comstock  V.  State,  14  Neb.  205.     p. 

552. 
Conduit  V.  Soane,  24  L.  T.  (n.  s.)  056. 

p.  303. 
Cone  V.  City  of  Hartford,  28   Conn. 

363  (1859).     p.  53. 
Coiikwiight   V.  People,   35  111.   204. 

pp.  479,  518. 
Connecticut  Trust  Co.   v.   Melandy, 

119  Mass.  450.    p.  353. 


TABLE    OF    CASES    CITED. 


xliii 


Connolly  v.  McLean,  G4  Pa.  St.  118. 

p.  848. 
Connor  v.  State,  4  Terg.  137.    pp. 

20(3,  4C9. 
Conner  v.  Trawick,  37   Ala.  289.     p. 

858. 
Connelly  r.  McKean,  64  Pa.  St,  113. 

p.  846. 
Connelly's  Case,  1  Lowin   C.  C.  227. 

p.  204. 
Conolly  V.  Riley,  25  Md.  402.     pp.  50. 

370. 
Continental  Ins.  Co.  v.  Delpeuch,  82 

Ponn.  St.  235.     p.  102. 
Conwell  V.  Watkins,  71   111.  488,     pp. 

54,  57. 
Cook  V.  Helms,  5  Wis.  107.    p.  77. 
Cook  V.  Skelton,  20  111.  107.     p.  38. 
Cook,  Re,  Jr.  Rep.  5  Eq.  240.     p.  224. 
Coi)kes  V.  Helller,  1  Ves.  sr.  235.     p. 

144. 
Cookendorfer  v.  Preston,  4  How.  317. 

p.  18(3. 
Coi'per  V.  Brockett,   4  Moore  P.  C. 

414.     p.  387. 
Cooper  V.  Dedrick,  22  Barb.  516.     p. 

175. 
Cooper  V.  Galbraith,  3   Wash.   C.  C. 

64i5.     p.  93. 
Cooper  V.  Gibbons,  3  Camp,  363.    pp. 

130,  137. 
Cooper  V.  Granberrj%   33  Mich.  117. 

p.  54. 
Cooper  V.  Moore,  44  Miss.  886.    p.  47. 
Cooper  V.  Poston,  1  Duv.  92.     p.  256. 
Cooper  V.  Reanej',  4  Minn.  528.    p. 

870. 
Co!>e  V.  Cope,  1   ^I.  &  Rob.  275.    pp. 

112,  113,  115,  116,  117,  118. 
Cope   V.   Humphreys,  14  S.  &  R,  21. 

p.  327. 
Cope  V.  Pearce,  7   Gill,  263.     pp.  93, 

433. 
CoiH'land  V.  Clark,  2   Ala.    3S8.    p. 

353. 
Copp  V.  Hanniker,  55  N.  H.  179.    p. 

5(17. 
C<>i^p  V.  Lnnib,  12  Me.  312.     p.  55. 
Corbus  V.  Tweed,  09  111.  205.     p.  35. 


Corbishloy'B  Trusts,  14  Ch.  Div.  81C. 

p.  201. 
Curdrey  v.  Cordrey,  1  Houst.   (Del.) 

269.     p.  280. 
Corning  v.  Gd.  Rapids,  46  Mich.  150. 

p.  36. 
Corwin  r.  Shoup,  76  111.  246.     p.  20. 
Cory  V.  Silcox,  6  Ind.  39.     p.  ."5. 
Costigan  v.  Gould,  5  Denio,  290.    p. 

89. 
Costigan  v.  Jlohawk,  etc.,  R.  Co.,  43 

Am.   Dec.  758;  2  Denio,    00.     p. 

140. 
Coulson  V.  Watson,  9  Pet.  08.    p.  394. 
County  of  Hancock  v.  Eastern  Rivur 

Co.,  20  :\Ie.  72.    p.  54. 
County  of  Mills  t).  Hamuker,  11  Iowa, 

206.     pp.  29,  36. 
Covert  V.  Gniy,  34  How.  Pr.  450.     pp. 

176,  188,  579. 
Cowio  V.   Fisher,  45  Mich.    629.    p. 

803. 
Cowperw.  Cowper,  2  P.  Wms.  749.  pp. 

140,  152. 
Cox  V.  Morrow,  14  Ark.  603.     p.  358. 
Cox  V.  Palmer,  1    McCrary,  331.     p. 

3'JO. 
Coxe  V.  Deringer,  78  Pa.  St.  271.     p. 

419. 
Coxe  V.  Deringer,  82  Penn.  St.  258. 

18;3. 
Coxe  V.  Field,  13  N.  J.  (L.)  215.     p. 

36. 
Coye  V.  Leach,  8  Mete.  371.    pp.  241, 

246.     .. 
Coylo  V.  Gozzler,  2  Cranch.   C.  Ct. 

625.     p.  186. 
Ct>zzens  V.   Gillispie,  4  Mo.  82.    p. 

256. 
Crab  tree  v.  Clark,  20  Me.  337.    pp. 

381,  393. 
Crafts  r.  Clark,  38  Iowa,  237.     p.  370. 
Craig  V.  Adair,  22  Ga.  373.    p.  54. 
Craig  V.  Craig,  1  Bailey  (Eq.)  (S.  C), 

102.    p.  200. 
Crake  v.  Crake,  18  Ind.  150.    p.  358. 
Crane  v.  Hardy,  1  Mich.  56.     p.  S70. 
Crawford  v.  Elliott,  1  Houst.  (Del.) 

465.     p.  200. 


xliv 


TABLE    OF    CASES    CITED. 


I 


Creed,  Ee,  1  Drewry,  235.     p.  215. 
Cress  V.  Btiird,  3  Ohio   St.  277.    p. 

303. 
Cressy  v.  Tatom,  9  Oresr-  541.     p.  358. 
Cribbs  v.  Adams,  18  Gray,  597.     pp. 

371,  372. 
Crisp  V.  Anderson,  1  Stark.  35.    pp. 

82,  122. 
Crist  V.  State,  21  Ala.  149.    p.  39. 
Croft  V.  White,  36  Miss.  455.     p.  390. 
Cromelien  v.  Brink,   29  Pa.  St.  522. 

p.-  37. 
Crompton  v.  Pratt,  105  Mass.  255.    p. 

350. 
Cross  V.  Bell,  34  N.  H.  82.     p.  123. 
Cross  V.  Brown,  41  N.  H.  289.     p.  93. 
Cross  V.  Cross,  3  Paige  CIi.  139;  23 

Am.  Dcp.  778.    pp.  113,  110. 
Crouch  V.  Evelctb,  15  Mass.  305.     p. 

197. 
Crouch  V.  Hall,  15  111.  2G3.     p.  359. 
Grouse  v.   Holman,  19  Ind.   30.    p. 

179. 
Crow  V.  Marshall,   15  Mo.  499.    p. 

404. 
Crowninsbield    v.    Crowninsbield,    2 

Gray,  524.     p.  280. 
Croxton  V.  May,  L.  K.  9  Cb.  Div.  388. 

p.  303. 
Crozier  v.  Hodge,  3  La.  858.     p.  370. 
Culbertson  v.  Milbollin,  22  Ind.  362. 

p.  54. 
Cumberland  Bk.  v.  Hall,  6  K   J.  L. 

215.    p.  381. 
Cumberledge  v.  Cole,  44  Iowa,   181. 

p.  420. 
Cummings  v.  Stone,  13  Mich.  70.    p. 

93. 
Cunningham  v.  State,  56  Miss.  269. 

pp.  457,  459,  589. 
Curlewis  v.  Corfield,  1  Q.  B.  814.     p. 

133. 
Currier  v.  Gale,  9  Allen,  522.     p.  163. 
Curtis  V.  Herrick,  14  Cal.  117  (1859). 

p.  53. 
Curtis  V.  Leavitt,   15  N.    Y.    1.     p. 

270. 
Curtis  V.  State,  6  Cold.  11.     p.  518. 
Curtiss  V.  Martin,  20  111.  557.     p.  77. 


Cutler  V.  State,  30  N.  J.  (L.)  125.    pp. 

7,  453. 
Cutler  V.  Wright,  22  N.  Y.  472.    p. 

378. 
Cuttle  u.  Brockway,  24  Pa.  St.  145. 

p.  55. 

D. 

D.  T.  V.  D.  L.  B.,  1  P.  &  D.,  127. 

p.  72. 
Daby  v.  Erickson,  45  N.  Y.  788.     pp. 

320,  322. 
Dallon  V.  Bethlehem,  20  N.  H.  505. 

p.  320. 
Dalton  V.  Lusk,  16  Mo.  111.    p.  358. 
Dalston   v.   Coatsworth,   1  P.   Wms. 

731.    pp.  141,  146. 
Dalton  V.  Coatsworth    p.  540. 
Dana  v.  Kemble,  19  Pick.   112.    p. 

67. 
Dauby  u.  Danby,  5  Jur.  [n.  s.)  54.    p. 

223. 
Daniels  v.  Barney,  22  Ind.  207.    p. 

7. 
Daniels  v.  Hamilton,    52     Ala.    105. 

pp.  172,  173. 
Danley  v.  Rector,  10  Ark.   211;    50 

Am.  Dec.  242.    p.  570, 
Darrant  v.  Friend,  5  DeG.  &  Sm,  345. 

p.  241. 
Davenport  Plow  Co.   v.   Mervis,   10 

Neb.  317.    p.  36. 
Davidson  v.  Kimpton,  L.  E.  18   Ch. 

Div.  213.     p.  303. 
Davies  v.  Davies,  9  C.   «fc  P.  37.    p. 

75. 
Davis  V.  Black,  1  Q.  B  911.    p.  35. 
Davis  Bowling,  19  Mo.  651.     p.  358. 
Davis  V.  Briggs,  7  Otto,  628.     p.  200. 
Davis  V.  Bush,  8  Jur.  1114.    p.  303. 
Davis  V.  Cariisle,  6  Ala.  707.    p.  390. 
Davis  V.  Dodd,  4  Taunt.  602.    p.  354. 
Davis  V.  Fish,   1  G.  Greene  (Iowa), 

406;  48  Am.  Dec.  387.    p.  68. 
Davis  V.  Hudson,  29  Minn.  28.    p.27. 
Davis    V.  Jenny,    1   Mete.    223,     p. 

393. 
Davis  V.  Johnson,  8  Munf.  81.     p.  55. 
Davis  V.  Loftin,  6  Tex.  490.     p.  ool. 


TABLE   OF   CASES    CITED. 


xlv 


Davis  V.  People,  1  Park.  C.  C.  447. 

p.  510. 
Davi3  V.  Rogers,  14  Ind.  424.    p.  370. 
Davis  V.  Stale,  17  Ala.  354.    p.  34. 
Davis  V.   State,  6  Tex.    (App.)   107. 

p.  3G. 
Davis  V.  State,  6  Baxt.  429.     p.  55. 
Day  V.  Lamb,  7  Vt.  426,     p.  90. 
Dean  v.  Bittner,  77  Mo.  101.    p.  202. 
Dean  v.  Com.,  4  Grntt.   541.     p.  538. 
Dean  v.  State,  37  Ark.  59.     p.  34. 
De  Bardelabau  v.  State,  50  Ala.  180. 

p.  39. 
Docker  v.  Livingston,  15  Johns.  479. 

p.  351. 
Decker  v.  Matthews,    12  N.    J.   313. 

p.  146. 
Do  Freest  v.  Bloomingdale,  5    Denio 

304.    p.  353. 
Deininger  v.  McConnell,  41   El.  227. 

p.  84. 
Dt'jarnette  v.  Com.,  75  Ya.  8G7.    p. 

459. 
Delabigarre  v.  Second  Municipality, 

3  La.  Ann.  250.     p.  419. 
Delaney  v,  Robinson,   2  Whart.  503. 

p.  315. 
Delphi  School  Dist.  v.  Murray,  53 

Cal.  29.    p.  47. 
Delamere  v.  Queen,  L.   R.    2  H.  L. 

419.    p.  35. 
Delano  V.  Goodwin,  41  N.   H.  205. 

p.  lt>2. 
Delassus  v.  U.  S.,  9  Pet.  118.     p.  55. 
Dempster  v.  Parnell,  4   Scott  N.   R. 

30.     p.  28. 
Don  V.  Den,  6  Cal.  81  (1856).     p.  53. 
Den  V.  Gaston,  25  N.  J.  (L.)  615.  p. 

419. 
Den  V.  Hill,  McAll.  480.    p.  55. 
Dennison  v.  Page,  29  Pa.  St.  420.     pp. 

108,  118. 
Deimison  v.  Story,  1  Oregon,  272.    p. 

55. 
Denniston    v.  McKeen,   2    ^IcLean, 

252.    p.  315. 
Denny   v.    Dana,    2    Cush.    160.     p. 

263. 
Desha  i;.  Smith,  20  Ala.  747.     p.  68. 


Desnoycr  v.  McDonald,  4  iliiin.  515. 

p.  370. 
Desvcrges  v.  Desverges,   31  Ga.  753 

p.  419. 
Deupreo  v.  Deupree,  45  Ga.  414.    p. 

35. 
Devino  v.  "Wilson,  10  Moore,   P.  C. 

502.    p.  404. 
Dexler  v.  Arnold,  3   Sumn.  152.     p. 

316. 
Diamond    r.  Tobias,  12  Pa.  St.  312. 

p.  324. 
Diokcrson  v.  Burke,  25  Ga.  225.     p. 

77. 
Didlako  v.  Robb,  1  Woods,  682.    p. 

322, 
Diehl  V.  Emig,  65  Penn.  St.  327.    pp. 

82,110. 
Dillman  v.  Cox,  23  Ind.  440.     p.  304. 
Dinkinsv.  Samuels,  10  Rich.  (L.)  70. 

p.  108. 
Dobson  V.  Campbell,  1   Sumn.   319. 

p.  35. 
Dodd  V.  Wake,  5  DeG.   &  Sm.  226. 

p.  303. 
Dodge  V.  Coffin,  15  Kas.  280.    p.  36. 
Dodge  V.   Haskell,   69  Me.   429.    p. 

396. 
Doe  V.  Andrew,  15  Q.  B.  751.    p.  219. 
Doe    V.    Campbell,   10    Johns.    475. 

p.  404. 
Doe  V.  Deaken,  4  B.  &  Aid.  435.    p. 

215. 
Doe  V.  Flanagan,  1  Ga.  558.    p.  200. 
Doe  V.  Ireland,  11  East,  280.     p.  427. 
Doe  V.  Jesson,  6  East,  80.    p.  201. 
Doe  V.  Nepean,  6  B.  &  Ad.  36.    pp. 

201,  235,  242. 
Doe   V.  Palmer,   16  Q.  B.    747.    p. 

387.  • 

Doll  V.  Anderson,  27  Cal.  248.    p.  35. 
Dollarhide  v.  Muscatine  Co.,   1    G. 

Greene,  158.    p.  54. 
Dollfus  V.  Frosth,  1  Denio,  367.     p. 

372. 
Dolph  V.  Barney,  5  Oregon,  591.    p. 

55. 
Donahue  v.  Coleman,  49  Conn.   464. 

p.  174. 


xlvi 


TABLE    OF    CASKS    CITED. 


Doiipgan  V.  T^'ood,  49  Ala.   242.     y 

370. 
Donnell  v.  Thompson,    13  Ala.  440 

p.  420. 
Donnelly  v.  State,  26  N.  J.  (L.)  613 

pp.  545,  549. 
Donohoe  v.  People,  6  Park.  120.     p 

551. 
Doolittle  V.  Holton,  26  Vt.  588.    p 

569. 
Doran  v.  Mullen,  78  111.  842.     p.  18 
Dorchester,  etc.,    Bk.   v.  N.  England 

Bk.,  1  Cush,  117.    pp.  17,  73. 
Doty  V.  James,  28  Mo.  319.     p.  347 
Doty  V.  State,  6  Blackf.  529.     p.  40 
Douglass  V.  Dakin,  46  Cal.  49.    pp 

248,  252. 
Douglass  V.  Mitchell,  35  Pa.  St.  440. 

pp.  5G9,  572,  574. 
Douglass  V.  Ovens,  5  Kich.  (L.)  534, 

p.  55. 
Dove  V.  State,  3  Heisk.  348.     p.  459 
Dove  V.  State,  37  Ark.  262,     p.  279, 
Dowley  v.  Winfield,  14  Sim.  277.    p 

239. 
Dowling  V.  Blackman,  70  Ala.  303 

p.  351. 
Downing  v.  Plate,  90  111.  268.     p.  142 
Downs  V.  Sooy,  28  K  J.  (Eq.)  55.     p 

308. 
Doyle  V.  Doyle,  56  N.  H.  667.    p 

568. 
Drake  v.  Duvenick,  45  Cal.  455.    p 

40. 
Drake  v.  Mooney,  31  Vt.  617.     p.  55 
Drayne's  Case,  5  Leg.  Obs.  123.     pp 

509,  516,  529. 
Drennau  v.  Douglass,  102  111.  345.     p 

108. 
Druse  v.  Wheeler,  22  Mich.  439.    pp 

47,  49, 
Drysdale's  Appeal,    14  Pa.  St.   531 

p.  320. 
Dubois  V.  Mason,  127  Mass.  37.    p 

358. 
Dudley  v.  Cadwell,  19  Conn.  219.     p 

84. 
Dudley  V.  Chilton   Co.,  66   Ala.   594 

(1880).    p.  53. 


Duffy,  Pve,  Ir.   Kcp.  5   Eq.   506.    p 

SS7. 
Duke  V.  Thompson,  16  Ohio,  35.     p, 

403. 

Duke  of  Cumberland  v.  Graves,  197. 
Dukes  V.  llowlcy,  24  111.  210.  p.  35 
Duncan  v.  Drury,  9   Pa  St.  332;   49 

Am.  Dec.  565.    p.  304. 
Dunham  v.  Miiiard,  Page,  443.     816 
Dunlap  V.  Sims,  2  La.  Ann.  530.     p, 

54. 
Dunlap  V.  Ball,  2   Cranch,   184.    p 

342. 
Dunlap  V.  Dougherty,  20  111.  397.    p 

54. 
Dunlap  V.  Munroe,  1   Cranch    C.  C. 

537.    p.  55. 
Dunn  V.  Adams,  1  Ala.  527 ;  35  Am 

Dec.  42.    p.  359. 
Dunn  V.  Snowden,  32  L.  J.  (Ch.)  104 

p.  197. 
Duim  V.  State,  2  Ark.  227.    pp.  488, 

605. 
Dunn's  Case,  1  Moody,  146.     p.  487, 
Dupeyre  v.  Western  Ins.  Co.,  2  Rub. 

(La.)  457;   38  Am.  Dec.  4G5.     p. 

102. 
Dupuis  V.  Thompson,  16  Fla.  70.    p. 

54. 
Durgin  v.  Danville,  47   Vt.   92.     p. 

124. 
Durkins  v.  Morse,  17  Ga.  62.     p.  57. 
Du  Val  V.  Marshall,  30  Ark.  230.     p. 

3G9. 
Dyer  v.  Flint,  21  111.  80.     p.  54. 
Dyerle  v.  Stair,  28  Gratt.  800.     p.  70. 
Dyson   V.   State,  26  Miss.   3G2.     pp. 

'36,  54. 

E. 

Eagle's   Case,   3  Abb.  Pr.   218.    pp. 

201,  222,  224,  230,  232. 
Eames  v.  Eames,  41   N.  H.   177.     p. 

175. 
Earbee  v.  "Wolfe,  9  Port.  366.     p.  77. 
East  India  Co.  v.  Evans,  1  Vern.  308. 
East  India  Co.  v.  Sandys,  1  Vern.  127- 

p.  145. 


TABLi:    OF   CASES   CITED. 


xlvii 


Eai=t  India  Co.  v.  Tritton,  3  B.  &  C. 

280.    p.  6. 
Eastman  v.  Teoplo,  93  111.  112.     p.  3'>. 
Eaton  V.  Wliito,  18  Wis.  518.     p.  47, 
Eaton  V.  Woydt,  2G  Wis.  833.    p.  172. 
E!)y  V.  Eby,  5  Pa.  St.  435.     p.  333. 
Eckor  V.  McAllister,  45  Md.  290.    pp. 

2G2,  407. 
Edson  V.  Hayden,  18  Wis.  G27.    p.  55. 
Edwards,  In  re,  68  Iowa,  431.    p.  95. 
Edwards  v.  Cunjpbell,  23   Barb.  423. 

p.  317. 
Edwards  r. 'James,  7  Tex.  (App.)  372. 

p.  65. 
Edwards  v.  State,  49  Ala.  834.     p.  39. 
Edwards  v.  Tuck,  23  Beav.  271.     p. 

803. 
Egery  v.  Buchanan,  5  Cal.  53  (1855). 

p.  53. 
"Kg^  V.  Barnett,  3  Esp.  Cas.  196.    p. 

815. 
EUicott  V.  Martin,  6  Md.509.    p.  77. 
Ellis  V.  Carr,  1  Bush,  527.    p.  64. 
Ellis  V.  Pay,  4  Conn.  95.    p.  481. 
Ellis  V.  Drake,  8  Allen,  161.     p.  564. 
Ellis  V.  Ellis,   58  Iowa,  720.    p.  5G9. 
Ellis  V.  Maxon,  19  Mich.  186.    p.  873, 
Ellsworth  V.  Moore,  6  Iowa,  486.    p. 

256. 
Eloi  V.  Mader,  1   Rob.   531 ;  38  Am. 

Due.  192.    p.  118. 
Ely  V.  Ely,  6  Gray,  439.    p.  381. 
Ely  V.  James,  123  Mass.  36,     p.  353. 
Emerson  v.  White,  29  N.  H.  482.    p. 

197. 
Emory  v.  Smith,  54  Ga.  273.     p.  120. 
Endres  y.  Lloyd,  56  Ga.  547.     p,  85. 
Entriken  v.  Brown,  30  Pa.  St,  864.     p. 

420, 
Epping  V.  Tunstall,  57  Ga.  207.    p,  35, 
Erskine  v.  Davis,   25   111.   251.     pp. 

190,  580. 
Erwin   v.  Lowry,  7  How,  181.     p.  54, 
Ettiiiger  v.  Com.,  98  Pa.  St,  3i5.     p. 

615, 
Eureka  Case,  The,  4  Sawy,  302.    p. 

56, 
Eureka  Ins.  Co.  v.  Robinson,  56   Pa, 
St.  256.    pp.  184,  185. 


Eustice  V.  Gaskins,  1  Wash,  (Va.)  183. 

p,  S41. 
Evans  v.  Ashby,  22  Ind,  15.     p,  5''. 
Evans  v.  Bd.  of  Trustees,  15  Ind.  319. 

p.  420, 
Evans  V.  Covington,  70  Ala.  440.    p, 

858. 
Evans  v.  Evans,   41    Cal,    103.    pp. 

202,  407. 
Evans  v.  Huff,  5  N.  J,  (Eq.)  300.     p. 

816, 
Ewart,  Ro,  1  Sw.  &  Tr.  258,     p,  242, 
Ewing  V.  Suvery,  8  Bibb,  205.     p.  200. 


F. 


Facey  v.   Fuller,  13  Mich.   527,     p, 

8G. 
Fackler  v.  Chapman,  20  Mo.  249.    p. 

479. 
Fairlee  v.  Fairlee,  21  N.  J,  (L.)  284. 

p.  419. 
Fales  V.  Wadsworth,  23  Me.  553.    p. 

504, 
Falkner  v.   Christian,  51    Ala,   495. 

p,  84. 
Farlce  v.  Farlee,  21  ^\  J.  L.   284. 

p.  394. 
Farmer's  Bank  v.   Leonard,  4  Harr. 

(Del.)  337.    p.  336. 
Farmer's,  etc.,  Bk.  v.  Detroit,  etc.,  R. 

Co.  17  Wis,  372,    p,  o;^. 
Farmer's,  etc.,  Bk.   v.  2s"oxon,  45  N. 

Y,  762.    p.  77. 
Farmer's,  etc.,  Bk.  v.  Sprague,  52  N. 

Y.  605.     pp.  18,  74, 
Farr  v.  Payne,  40  Vt.  615.     p.  165. 
Farr  v.  Sims,  Rich.  Eq.   Cases,  122; 

24  Am.  Dec.  396  (1832).    p.  53. 
Farrar  v.  Beswick,   1  N.  «&  R,  527. 

p.  67. 
Farrar  v.  State,  2  Ohio,  54.    p.  486. 
Farrar  v.  State,  5   Tex.  (App.)  489. 

p.  55. 
Farrar  V.  Merrill,  1  Me,  17.    p,   403. 
Farrow  v.   Edmundson,   4    B.   Mou. 

665;  41  Am,  Dec.  250,     p,  404, 
Fanning  v.  State,    14   Mu,    Z'i^.      p. 
638. 


xlviii 


TABLE    OF    CASES    CITED. 


Fnnlknor  v.    Johnson,   11  M,   *t  W. 

581.    p.  59. 
Fay  V.  Eichmond,   43  Vt.  25.     p.  47. 
Tertster  r.  Woodfill,  23  Ind.  493.    p. 

54. 
Federhen  v.  Smith,  3  Allen,  119.    p. 

90. 
Felker  v.  Emerson,   16  Vt.   653.    p. 

280. 
Fenton  v.  Keed,   13  Johns.  51.    pp. 

93,  435. 
Fenwick  v.  Eeed,   1  B.  &  Aid.  232. 

p.  411. 
Ferrer's  Case,  19   How.  St.  Tr.  904. 

p.  509. 
Ferris  v.  Kilmer,  47  Bach.  411.     p. 

68. 
Ficklin  v.  Carrington,  31  Gratt.   219. 

p.  305. 
Fife  V.  Com.,  29  Pa.  St.  429.    p.  3G. 
Fields.  Brown,  24  Gratt.  74.    p.  403. 
Field  V.  Gooding,   106  Mass.  310.     p. 

564. 
Field  V.  Proprietors,  1   Cush.  11.    p. 

50. 
Field  V.  Walker,  17  Ala.  80.    p.  803. 
Filer  v.  Peebles,  8  N.  H.  226.    p.  183. 
Finch  V.  Alston,  2  H.  P.  (Pa.)  85.    p. 

478. 
First  Nat.  Bk,  v.  Green,  43  N.  Y.  298. 

p.  79. 
First  Nat.  Bk.  v.  McMangle,  69  Pa. 

St.  156.    p.  344. 
First  Nat.  Bk.  v.  St.  Joseph,  46  Mich. 

527.    p.  54. 
Fish  V.  Skeet,  21  Barb.  833.    p.  420. 
Fisher  v.   Chicago,  etc.,  H.  Co.,  104 

111.  323.    p.  35. 
Fisher  v.  Maj-or  of  New  York,  6  Hun, 

64.    p.  326. 
Fisher  v.  Phillips,  4  Baxt.   243.     p." 

343. 
Fisher's  Case,  23  111.  293.    p.  459. 
Fitch  V.  Jones,   5  El.   &  B.  238.     p. 

77. 
Fitch  V.  Peckham,  16  Vt.  150.      p. 

75. 
Fitzgerald  v.  Drissler,  7  C.  B.  (n.  s.) 

375.    p.  82. 


Fitzluigh  V.  Croghan,  2  J.  J.  Marsh. 

429;  19  Am.  Dec.  139.     p.  403. 
Fitzwilliam  v.  Troy,  6  N.  H.  166.     p. 

802. 
Fladong  v.  "Winter,  19  Ves.  197.     p. 

336. 
Flanagan  v.   State,  46   Ala.  703.    p. 

493. 
Flanagan   v.    State,   25  Ark.  92.    p. 

542.' 
Flanders  v.  Davis,  19  N.  H.  139.    p. 

280. 
Flannery  v.  Anderson,  4  Nev.  438.  p. 

30. 
Fleming  v.  Fleming,  4  Bing.  266.    p. 

106. 
Fleming  v.  People,  27  N.  Y.  329.    p. 

106, 
Flettesham  v.  Julian,  Year  Book,  7 

Hen.  IV.  9.     p.  109. 
Florentine  v.  Barton,  2  Wall.  210.     p. 

34. 
Flournoy  v.  Warden,  17  Mo.  435.     p. 

248. 
Floyd  V.  Calvert,  53  Miss.  46.    pp. 

450,  451,  586. 
Flynn  v.   Coffee,    12  Allen,  133.     p. 

215. 
Flynn  v.  Murphy,   2   E.   D.   Smith, 

278.    pp.  18, 74. 
Folsom  V.  Koot,  1  Cal.  374.    p.  35. 
Foot  V.  Stevens,  17  Wend.  483.     pp. 

30,  34. 
Foote  V.  Lawrence,  1   Stew.   (Ala.) 

483.    p.  38. 
Fontaine    v.  Gunther,  31    Ala.   264. 

p.  396. 
Forbes  v.  Scanwell,  13  Cal.  278.    p. 

372. 
Ford  V.  Simmons,  13  La.  Ann,  397, 

20. 
Forman  1;.  Crutcher,  2  A.  K.  Marsh. 

70.    p.  419. 
Forsaith  v.  Clark,  21  N.  H.  409.    pp. 

56,  200. 
Forsyth  v.  Baxter,  3  Til.  9.     p.  360. 
Fourth  Parish  v.  Springfield,  18  Pick. 

319.     p.  403. 
Foster  v.  Steele,  3  Bing.  892.    p.  557. 


TABLE    OF    CASES    CITED. 


xlix 


Foulk  V.  Brown,  2  "Watts,  216.     pp, 

310,  319,  40  5. 
Foulks  V.   Ehea,    7    Bush,    508.     p 

200. 
Fox  V.  Hoyt,  12  Conn.  401 ;  31   Am 

Dec.  7C.3.    p.  29. 
Fox  V.  Thompson,  7  Casey,  174.     p 

407. 
Forcraa's  Case,  1  Roll.  Abr.     p.  110 
Foxley's    Case,  5    Coke,   109b;    43 

Eliz.    p.  .037. 
Fniiicis  V.  Bilker,     p.  568. 
Frail tz  V.  Ireland,  66  Barb.  386.    p. 

404. 
Fraser  v.  Frasor,  Jac.  586.    p.  303. 
Frcel  V.  State,  21  Ark.  212.  pp.279, 296. 
Freestone  v.  Butcher,  9  C  &  P.  647. 

p.  280. 
Freeholders  v.  State,  24  N .  J.   (L.) 

718.    p.  57. 
Freeman  v.   Thayer,  33  Me.  76.    p 

82. 
French  v.  Frazier,  7  J.  J.  Marsh.  431 

p.  239. 
French  v.  Price,  24  Pick.  13.     pp.  353 

35.J. 
Frick  V.  Barbour,  64  Pa.  St.  120.    p 

134. 
Fritz  V.  Brandon,  78  Pa.  St.  342.    p 

403. 
Frosh  V.  Holmes,  8  Tex.  29.    pp.  36 

40. 
Frost  V.  Brown,  2  Bay,  133.    pp.  403 

556. 
Fuhrman  v.  London,  13  R.  &  E.  386 

15  Am.  Dec.  608.     p.  819. 
Fuller  V.  Bates,  6  111.  (App.)  442.     p, 

85. 
Fuller  V.  Hutchins,  10  Cal.  523.    p 

79. 
Fuller  V.  Saxton,  20  N.  J.  (L.)  61.    p 

419. 
Fuller  V.  Smith,  5  Jones  Eq.  192.    p 

844. 
Fuller    V.    State,    48    Ala.    273.     p 

518. 
Fuhvciler  v.  Baugher,  15  S.  &  P..  45 

p.  192. 
Fyfe  V.  Fyfe,  106  111.  646.    p.  258. 
d 


G. 

Gaines  v.  Herman,  24  How.  553.    p. 

107. 
Gaines  v.  New  Orleans,  6  "Wall.  690. 

p.  107. 
Gaither  v.  Myrick,  9  Md.  118.    p.  439. 
Gallagher  v.  Vaught,  8  Hun,  87.    p. 

75. 
Galpin  v.  Page,  18  Wall.  304.    pp.  28, 

33,  46,  576. 
Gantt's  Admr.  v.  Phillips,  25  Ala. 

2781.     pp.  422,  424,  425. 
Garden  v.   Garden,  2   Houst.   (Del.) 

574.    p.  233. 
Garden   City  Ins.  Co.  v.  Stayart,  79 

111.  259.     p.  54. 
Gardner  v.  Lewis,  7  Gall.  377.    pp. 

262,  370,  467. 
Gardners.  People,  6  Park.  C.  C.  205 

p.  543. 
Gardner  v.  Webber,  17  Pick.  407.    p 

90. 
Garland  v.  Lane.  46  N.  H.  245.    p 

77. 
Garloch  v.  Geortner,  7  "Wend.  108.    p 

347. 
Garner  v.  Green,  8  Ala.  96.     p.  103. 
Garnier  v.  Renner,   51  Ind.  374.    p 

324. 
Garrett  v.  Dilsbury  E.  Co.,  78  Pa.  St 

467.    p.  36. 
Garrett  v.  Jackson,  8  Harris,  335.    p, 

407. 
Garrison  v.  McGlockley,  38  Cal.  78 

p.  35. 
Garrison  v.  Myers,  12  "W.  Y&.  330, 

p.  36. 
Gartside  v.  Ratcliffe,  Chac.  Cas.  292, 

p.  144. 
Garwood  v.  Hasings,  38  Cal.  229.    p 

212. 
Gassett  v.  Godfrey,  26  N.  H.  415.    p 

93. 
Gast  V.  Drakely,  2  Gill,  330.    p.  5. 
Gathings  v.  "Williams,  1    Ired.  (L.) 

4S7  ;  44  Am.  Dec.  49.    p.  404. 
Gaul  r.  Grout,  1  Cow.  113.    p.  50. 
Gaugwere,  Re,  14  Pa.  SU  417.'  p.  179. 


1 


TABLE    OF    CASES    CITED. 


Gny  r.  Biclvroll.  7  Mich.  519.     p.  93. 
Gay  r.   Soulbworth,  113  Mass.  333. 

p.  54. 
Geading  v.   "Walter,  29  Mo.  426.    p. 

304. 
Gee  V.  Hicks,  Rich.  (S.  C.)  Eq.  Cas. 

pp.  99,  440. 
Gelston  v.   Hoyt,   1   Johns.  Ch,  543. 

p.  176. 
Gening  v.  State,  1  McCord,  573.    p. 

465. 
Gentile  y.  Foley,  3  La.  Ann.  146.     p. 

36. 
Georgia  R.  Co.  v.  Monroe,  49  Ga.  373. 

p.  103. 
Georgia  R.  Co.  v.  Willis,  28  Ga.  317. 

p.  103. 
Germain   v.  Brooklyn  L.  Ins.  Co.,  26 

Hun,  604.    p.  192. 
Gerry  v.  Post,  13  How.  Pr.  118.     p. 

224. 
Gibbes  v.  Vincent,  11  Pick.  (L.)  323. 

p.  232. 
Gibbs  V.  Nash,  4  Barb.  449.    p.  84. 
Gibbs  V.  Pike,  9  M.  &  W.  351.     p.  35. 
Gibson  v.  Doeg,  2  H.  &  N.  615.     pp. 

81,  276. 
Gibson  v.  Fletcher,  1  Ch.  Cas.  59.    p. 

316. 
Gibson  v.  State,  38  Miss.  313.    p.  444. 
Gilbert  v.  Ross,  7  M.  &  W.  121.    p. 

135. 
Gilbraith  v.  Littiech,  73  111.  209.    p. 

54. 
Giles  V.  Barremore,  5  Johns.  Ch.  545. 

pp.  309,  318. 
Gill  V.  Munley,  16  Ir.  L.  T.  57.     p.  201. 
Gilleland  v.  Martin,  3  McLean,  490. 

p.  216. 
Gillett  V.  Gillett,  9  Wis.  194.    p.  55. 
Gillett  V.  Sweat,  6  111.  475.    p.  390". 
Gilman  v.  Eaton,  3  Brod.  &  B.  75. 

p.  380. 
Gilt  V.  Watson,  18  Mo.  274.    p.  248. 
Given  v.  Albert,  5  W.  &  S.  333.    p. 

92. 
Given  v.   Charron,  1   Md.  502.    pp. 

17,  73. 
Givens  v.  Tidmore,  8  Ala.  745.   p.  248. 


Gladthorpo  v.  Hardman,  13  M.  &  W. 

377.     p.  "5. 
Glancy  v.  Elliott,  14  111.  456.    pp.  35, 

54. 
Glass  V.  Gilbert,  58  Pa.  St.  266.    p. 

403. 
Glaze  V.  Blake,  56   Ala.  379.    p.  120. 
Godfrey  v.  Disbrow,    Walk.  (Mich.) 

2G0.    p.  84. 
Godfrey  v.  Schmidt,  1   Cheves  (S.  C.) 

57.    p.  200. 
Goener  v.  WoU,  26  Minn.  154.    p.  54. 
Golden  v.  State,  25  Ga.  527.    p.  539. 
Goldhawk  v.  Duane,  2  Wash.  C.  C. 

323.     p.  323. 
Goldie  V.  McDonald,  79   111.  605.     p. 

173. 
Goldner  v.  Bressler,  105  111.  420.    p. 

47. 
Gombault  v.  Public  Admr.,  4  Bradf. 

226.     p.  179. 
Gooch  V.  Bryant,  13  Me.  365.     p.  381. 
Goodell  V.  Hibbard,  32  Mich.  55.     p. 

249. 
Goodman  v.  Griffin,   3   Stew.  (Ala.) 

IGO.     p.  358. 
Goodman  v.  Sayres,  2  Jac.  &  W.  263. 

p.  6. 
Goodman  v.  Simonds,  20  How.  343. 

p.  77. 
Goodman  v.  Winter,  64  Ala.  410.    p. 

419. 
Goodright  v.  Saul,  4  Term  Rep.  358. 

p.  110. 
Goodtitle  v.   Baldwin,  11  East,  488. 

pp.  404,  427. 
Goodwin  v.  Garr,  8  Cal.  615.     p.  420. 
Goodwyn  v.  Baldwin,   69   Ala.  127, 

pp.  7,  308. 
Gordon  v.  Norris,  29  K  H.  1 98.     p.  55. 
Gordon  v.  People,  33  N.  Y.  508.    p. 

551. 
Gordon  v.  Ward,  16  Mich.  363.    p.  370. 
Gose  V.  State,  0  Tex.   App.  121.    p. 

537. 
Goshen  v.  Richmond,  4  Allen,  458. 

p.  564. 
Gossct  V.  Howard,  10  Q.  B.  441.    p.  36. 
Gottfried's  Case.    p.  499 


TABLE   OF   CASES   CITED. 


u 


Goulil  v.  Norfolk  Lead  Co.,  9  Cush. 

8;JS.     p.  103. 
Goulding    V.   Chirk,   34  N.   H.   148. 

pp.  27,  31. 
Governor  v.  Campbell,  17  Ala.  566. 

p.  304. 
Governor  v.  Ridgway,  12  111.  14.     p. 

67. 
Giiibill  V.  Barr,  5  Pa.  St.  441.     p.  179. 
Giufton  Bank  v.  Doo,  19  Vt.  4G7.     p. 

800. 
Graham  r.  Com.,  IG  B.  Mon.  (Kj.) 

687.    p.  459. 
Graham  v.  O'Fallon,  4  Mo.  007.    p. 

381. 
Graham  w.Whitely,  26  N.  J.  (L.)  262. 

p.  31. 
Grant  v.  Burgwyn,  84  N.  C.  550.    p. 

340. 
Grant  v.  Lexington  F.  Ins.  Co.,  5  Ind. 

28.    pp.  17,  73. 
Grantmake  v.   Sampson,  2  Atk.  154. 

p.  327. 
Graves  v.  Colwell,   90  111.  615.    pp. 

259,  576. 
Graves  v.  Moore,  7  T.  B.  Mon.  341. 
p.  845. 
.   Graves  v.  State,  12  Wis.  593.     p.  168. 
Gray  v.  Cruise,  3G  Ala,  559.    p.  37. 
Gray    v.  Luich,   23   Conn.    613!    p. 

103. 
Gray  v.  Fray,  2  Lans.  173.    p.  349. 
Gray  v.  Haig,  20  Beav.  219.     p.  145. 
Gray  v.  Larrimore,  4  Sawy.  638.     p. 

83. 
Grayson  v.  Weddle,  63  Mo.  623.     p. 

54. 
Great  West.  R.  Co.  v.  Bacon,  30  111. 

347.    p.  20 . 
Greaves  v.  Legg,  11  Ex.  612:  2  11.  & 

N.  210.    pp.17,  73 
Green  t;.  Brown  2  Strange,  1199.     p. 

228. 
Green  v.  Rugley,  23  Tex.  539.    p.  370. 
Green  v.  Russell,  132   Mass.  538.    p. 

353. 
Green  v.  State,  66  Ala.  40.     p.  34. 
Greenfield  v.  Camden,  74  Me.  50.    p. 
172. 


Greensborough  v.  Underbill,  12  Vt 

604.    pp.  448,  683. 
Greenshields  v.  Crawford,  9  M.  &  W. 

314.    p.  253. 
Green  wado  v.  Green  wade,    3   Dana, 

497.    300. 
Greenwood  v.  Lowe,  7  La.  Ann.  197. 

pp.93,  438. 
Gregg  V.  Bethoa,  6  Port.  9.     p.  321. 
Gregory  v.  Brooks,  37  Conn.  365.    p. 

61. 
Grellier  v.  Neale,  1  Peake,  199.    p. 

83. 
Greville  v.  Tyler,  7  Moore,  P.  C.  320. 

p.  387. 
Grewell  v.  Henderson,  7  Cal.  290.    p. 

35. 
Grey  v.  Grey,  47  N.  Y.  552,     pp.  305, 

355. 
Grey  v.  McDowell,  6  Bush,  482.    p. 
214. 
Griffin  v.  Custer,  5  Ired.  (Eq.)   413. 

p.  359. 
Griffin  v.  Mason,  3  Camp.  7.     p.  83. 
Grimes  v.  Bastrop,  26  Tux.  310.     p. 

403. 
Grimes  v.  Fall,  15  Cal.  63.    p.  41. 
Grimes  v.  Kimball,  3  Allen,  513.  pp. 

124,  100. 
Grinnell    v.    Warner,  21    Iowa,    11. 

p.  353. 
Grinstead  v.  Foote,  26  Miss.  476.    p. 

40. 
Groves  v.  Groves,  12  W.  R.  45.  p. 

303. 
Groves  v.  Steel,  3  La.  Ann.  280.    p. 

322. 
Guard  v.  Bradley,  7  Ired.  600.  p.  304. 
Guardian  L.  Ins.  Co.  v.  Hogan,  80  III. 

35.    p.  192. 
Gueligr.  State,  66  Ind.  94.     p.  459. 
Guice  V.  State,  60  Miss.  714.     p.  36. 
Gulick  V.  Loder,  13  N.  J.  (L.)  72. 

p.  555. 
Gurney  v.  Gumey,  32  L.  J.  (Ch.)  456. 

p.  117. 
Gutzweiler  v.  Lackman,  39   Mo.  91. 

p.  93. 
Guy  V.  Washburn,  23  Cal.  Ill  p.  53. 


lii 


TABLS   OF   CASES   CITED. 


Gwinr,  Loe,  1  Md.  Ch.  445.    p.  77. 
Gwyn  V.  Porter,  5  Heisk.  264.  p.  342. 

H. 

Habersham  v.  Hopkins,  4  Strobh.  (S. 

C.)  239.    p.  93. 
Haden  v.  Ive)',  51    Ala.  381.    p.  358. 
Eadfield's  Case,  29  How.  St.  Tr.  109. 

p.  179. 
Hagar  v.   Supervisors,  47    Cal.   222 

(1874).    p.  53. 
Hagar  v.  Thomson,  1  Black.  80.    p.  93. 
Hahn  v.  Kelly,  34  Cal.  400.    p.  27. 
Haines  v.  Pearce,  41  Md.  221.    p.  355. 
Haire  v.  Wilson,  9  B.  «&  C.  643.    p. 

262. 
Haldane  v.  Harvey,  4  Burr.  2486.    p. 

121. 
Hale  V.  Pack,  10  W.  Va.  145.    p.  342. 
Hale  V.  "Warner,  36  Ark.  221.    p.  34. 
Haley  v.  Lacey,  1  Sawy.  498.    p.  22. 
Hall,  Re,  1  Wall.  jr.  85.    pp.  193, 

200,  223. 
Hall,  Re,  12  Ch.  L.  N.  68.    p.  241. 
Hall  V.  Bainbridge,  12  Q.  B.  699.    p. 

83. 
Hall  V.  Com.,  Hardin   (Ky.)  480.    p. 

192. 
Hall  V.  Holden,  116  Mass.  172.    p.  70. 
Hall  V.  Howell,  10  Conn.  514.    p.  80. 
Hall  V.  Kellogg,  16  Mich.  135.    pp. 

59,  00. 
Hall  V.  Pillow,  31  Ark.  32.     p.  358. 
Hall  V.  State,  8  Ind.  439.     p.  518. 
Hall  V.   Warren,  9  Vesey,   605.    p. 

179. 
Hallock  V.  Bush,  2  Root,  26.    p.  303. 
Halyburton  v.  Kershaw,   3    Dessau. 

105.    p.  144. 
Ham  V.  Barret,  28  Mo.  388.     p.  5G0. 
Hamby  v.  State,  36   Tex.  623.     pp. 

271,  473,  474. 
Hamilton  v.  People,  29  Mich.  193. 

p.  576. 
Hamlin  v.  Dungman,  5  Lans.  61.    p. 

47. 
Hamlin  v.  Hamlin,  3  Jones  Eq.  191. 

p.  336. 


ITammersmith,  etc.,  R.  Co.  v.  Brand, 

L.  11.  4  II.  L.  224.    p.  134. 
Hammond  v.  Inloes,  4  Md.  140.    pp. 

193,  197. 
Hampden  v.   Hampden,  1  Brown  P. 

C.  250.    p.  145. 
Hamshaw  v.  Kline,  57  Pa.  St.  397.    p. 

248. 
Hancock  v.  Am.  L.  Ins.  Co.,  02  Mo. 

26.     pp.  200,  201. 
Hand  v.  Ballou,  2   Kernan,  641.    p. 

563. 
Hanford  v.  Fitch,  41   Conn.  486.     p. 

404. 
Hanks,  Ex  parte,  1  Cheves  (S.  C.)  203. 

p.  55. 
Hansen  v.  Bergquist,  9  Neb.  269.    p. 

36. 
Hanson  v.   Chitovitch,  13  Nev.  395. 

p.  103. 
Hanson  v.  Eustice,  2  How.  653.    p. 

137. 
Hanson  v.  McCue,  42  Cal.  303.    p.  405. 
Harbaugh  v.  City  of  Monmouth,  74 

HI.  367.    p.  20. 
Hardin  v.  Crate,  78  111.  533.    p.  8  i. 
Hardin  v.  Hays,  9  Pa.  St.  151.    p.  179. 
Hardin  v.  Ho-Yo-Po-Nubby,  27  Miss. 

667.     p.  53. 
Harfly  v.  McCullough,  23  Gratt.  251. 

p.  403. 
Hargrave  v.  Hargrave,  9  Beav.  255- 

pp.  Ill,  112. 
Harper  v.  Hampton,  1  Harr.  &  J.  623. 

p.  370. 
Harper  v.  Harper,  1  H.  &  McH.  687. 

p.  370. 
Harriman  v.  Queen  Ins.  Co.,  49  Wis. 

71.    p.  103. 
Harrington  v.  Pry,  1  Ry.  &  M.  90. 

p.  250. 
Harrington  v.  State,  19  Ohio  St.  264. 

p.  442. 
Harris  v.  Allnutt,  12  La.  405.     p.  370. 
Harris  v.  Goodwyn,  2  M.  &  Gr.  405. 

p.  35. 
Harris  v.  Lester,  80  111.  303.    p.  35. 
Harris  v.  McKissock,   34  Miss.  170. 

p.  54. 


TABLE    OF    CASES    CITED. 


liii 


Harris  v.  Rosenberg,  43  Conn.  227. 

pp.  140,  155. 
Harris  v.  Story,  2  E.  D.  Smith,  3G3. 

p.  18. 
Harrison  v.  Harrison,  9  Ala.  73.     p. 

815. 
Harrison  v.  Mayor,  4  De  G.  M.  &  G. 

153.    p.  107. 
Harrison's  Case,  Roscoe  Cr.  Ev.  56. 

p.  4G5. 
Harrod  v.  Baretto,  1  Hall.  155.  p.  30. 
Hiirrodt).  Harrod,  1  K.  &  J.4.  p.  106. 
Hart  V.  Burnett,  15  Cal.  530.  p.  53, 
Hart  V.  Hart,  1  Harr.  1.  p.  82. 
Hart  V.  Newton,  48  Mich.  401.  p.  36. 
Hartv.  Roper,  6  Ired.  (Eq.)  340.     p. 

13. 
Hurt  V.  Ten  Eyck,  2  Johns.  Ch,  108. 

p.  149. 
Hartwell  v.  Root,  19  Johns.  340;  10 

Am.  Dec.  2:53.    p.  56. 
Harwood  v.  Goodright,  Cowp.  91.    p. 

147. 
Harvey  v.  Laflin,  2  Ind.  478.     p.  35. 
Harvey  v.  Thornton,  14  lU.  217.     p. 

198. 
Harvey  v.  Thorpe,  28  Ala.  250.    pp. 

53,  423.  il-i,  426. 
Harvey  v.  Towers,  6  Ga.  660.    p.  77. 
Harvey  v.  Tyler,    p.  33. 
Hatch  V.  Bayley,  12  Cush.  27.    pp. 

98,  440. 
Haskell  V.  Com.,  3  B.  Mon.  342.     p. 

4G5. 
Hastings  v.  Cunningham,  35  Cal.  549. 

p.  35. 
Hastings  v.  Wagner,  7  W.  &  S.  215. 

p.  403. 
Hathaway   v.  Addison,  48  !Me.  440. 

p.  47. 
Haurick  v.  Andrews,    9   Port.    576. 

p.  5. 
Haven  v,  Foster,  9  Pick.  112.    p.  14. 
Hawks  V.  Brigham,  16  Gray,  561.     p. 

664. 
Hawks  V.  Hamar,  5  Binney,  43.     p. 

299. 
Harden  v.  Hay  ward,  1  Camp.  180.    p. 
128. 


Hayes  v.  Bewick,  2  Mart.  (La.)  ICI ;  5 

Am.  Dec.  727.    p.  212. 
Hays  V.  State,  58  Ga.  47.     p.  262. 
Hayes  v.  Whitall,  13  N.  J.  Eq.  241. 

p.  819. 
Huynes  v.  Cowen,  15  Kas.  277,  C37. 

p".  36. 
Haynes  v.  Haynes,  35  L.  J.  Ch.  303. 

p.  303. 
Hays  &  Ford,  55  Ind.  52.     p.  27. 
Hays  V.  Samuels,   55  Tex.   560.     p. 

846. 
Hays  V.  Tribble,  3  B.  Monr.  109.    p. 

197. 
Haywood  v.  Lewis,  65  Ga.  224.    p. 

846. 
Hazen  v.  Henry,  6  Ark.  86.    p.  98. 
Headv.  Briscoe,  5  C.  &P.  484;  24  E. 

C.  L.  419.    p.  299. 
Head  v.  Head,  1  Sim.  &  Stu.  150.    p. 

111. 
Healey  v.  Dean,  68  Ga.  514.     p.  54. 
Hearn  v.  State,  62  Ala.  218.    p.  39. 
Heath  v.  Sanson,  2  B.  &  Ad.  201.     p. 

77. 
Heath  v.  "Waters,  40  Mich.  457.    p. 

123. 
Hedge  v.  Drew,  12  Pick.  141.    p.  303. 
Hedge  v.  McQuaid,  11  Cush.  352.     p. 

160. 
Hefflinger  v.  Shutz,  16  S.  &  R.  4G.    p. 

386. 
Heffner  v.  Wenrich,  32  Pa.  St.  423. 

p.  386. 
Helm  V.  Jones,  3  Dana,   88.     p.  342. 
Hemmenway  v.  Lawner,  1  Allen,  209. 

pp.113,  117.  118. 
Hcmraingway  v,  Davis,  24  Ohio  St. 

150.    p.  36. 
Henderson  v.  Hoke,  1  Dev.  &  B  119. 

p.  IGO. 
Henderson  v.  Lewis,  9  S.  &  R.  384 ; 

11  Am.  Dec.  732.    pp.  211,  822, 

831. 
Henderson's  Trusts,  Re,    p.  235. 
Hendrich  v.  Bannister,  12  La.  Ann. 

373.    p.  344. 
Hendricks  v.  Judah,  1  Johns.  319.    p. 
78. 


liv 


TABLE   OF   CASES    CITED. 


Heninan  v.  Dickinson,  5  Bing.  183. 

p.  388. 
Hennt'U  v.  Lyon,  1  B.  &  Aid.  182.    p. 

251. 
Henry  v.  Dulle,  74  Mo.  443.    p.  54. 
Henry  v.  Evans,  58  la.  5G0.     p.  36. 
Henry  v.  Root,  33  N.  Y.  554.    p.  358 
Henthorn  v.  Dove,  1  Blackf.  157.    p 

858. 
Hentsch  v.  Porter,  10  Cal.  555.     p.  35 
Hepburn  v.  Auld,  5  Crunch,  202.     p 

403. 
Hepburn  v.  Citizens'  Bk.,  3  La.  Ann 

565.    p,  95. 
Herbert  v.  Herbert,  Breeze,  282.     p 

304. 
Hermann  v.  Pardridge,  79   111.   471 

p.  35. 
Herrick  v.  Malin,  22  Wend.  873.     p 

890. 
Herring  v.  Goodson,  43  Miss.  392.     p. 

108. 
Heslop  V.  Heslop,  82  Pa.  St.  53.    p. 

140. 
Heuss,  Re,  2  Salk.  533.    p.  241. 
Hewes  v.  Platts,  12  Gray,  143.     pp. 

101,  276. 
Hewitt  V.  Stephens,  5  La.  Ann.  640. 

p.  54. 
Hewlett  V.   Hewlett,  4  Edw.  Ch.  8. 

pp.  93,  94,  436. 
Heyer  v.  Pruyne,  4  Paige,  443.     p. 

316. 
Hibbard  v.  Mill,  46  Vt.  243.    pp.  98, 

440. 
Hickman  v.  Alpaugh,  21  Cal.  228.    p. 

370. 
Hickman  v.  Boffman,  Hardin,  349.    p. 

54. 
Hickman  v.  Upsall,  L.  R.  20  Eq.  139. 

p.  235. 
Hickman  v.  Upsall,  4  Ch.  Div.  147; 

2  Id.  619.    p.  2:35. 
Hicks  u.  Keats,  4  B.  &  C.  71.    p.  279. 
Hicks  V.  Silliman,  93  III.  261.    p.  5:J8. 
Higginson  v.  Mein,  4  Cranch,  415.    p. 

816. 
High,  Re,  2  Doug.  (Mloh.)  515.    p. 
358. 


High  am  v.  Stewart,  38  Mich.  513.    p. 

303. 
Highfield  v.  Phelps,  50  Ga.  59.     p.  57. 
Hightower  v.  State,  58  Miss.  636.    p. 

36. 
Hill  V.  Barnes,  11  N.  H.  395.    p.  386. 
Hill  V.  Beach,  12  N.  J.  (Eq.)  31.    p. 

415. 
Hill  V.  Cooley,  46  Pa.  St.   259.     p. 

886. 
Hill  V.  Grigsby,  32  Cal.  55.    p.  370. 
Hill  V.  Johnston,  3  Ired.   (Eq.)  432. 

p.  18. 
Hill  V.  Lord,  48  Me.  463.    p.  87. 
Hill  V.  Wilker,  41  Ga.  449.    p.  3C0. 
Hillary  v.  "Waller,   12  Ves.  267.    p. 

338. 
Hillebrant  v.  Burton,   17  Tex.  138. 

p.  36. 
Hilliard  v.  Gould,  34  N.  H.  230.    p. 

60. 
Hinckley  v.  Kersting,  21  111.  247.    pp 

16,  72. 
Hine  v.  Pomeroy,  39   Vt.   211.    p. 

185. 
Hite  u.  Lenhert,  7  Mo.  22.     p.  370. 
Hix  V.  WhiUemore,  4  Mete.  545.    p. 

179. 
Hobbs  V.  Bibb,  9  Stew.  (Ala.)  54.    p. 

404. 
Hochreiter  v.  People,  2  Abb.  App. 

Dec.  863.  p.  279. 
Hodgdon  v.  AVright,  36  Me.  337.    p. 

35L 
Hodgkinson  v.  Willis,  3  Camp.  401. 

p.  250. 
Hoey  V.  Firman,  1  Pa.  St.  295;  44 

Am.  Dec.  129.    p.  404. 
Holleman   v.  De  Wyse,  51   Ala.  95. 

pp.  34,  53. 
Hullman  v.  Johnson,  Cowp.  21.    p. 

15. 
Hollingham   v.  Head,  4  C.  B.  (n.  s.) 

388.    p.  182. 
Holloway  v.  State,  53  Ind.  554.     p.  35. 
Holman's  Appeal,  24  Pa.  St.  174.    p. 

820. 
Holine  V.  Karpser,  5  Binney,  405.    p. 
77. 


TABLE   OF   CASES   CITED. 


Iv 


IIoliTios  r.  Broughton,  10  "Wend.  78. 

pp.  3,j8,  370. 
Hul  11108  t>.  Do  Camp,  1  Johns.  31.     p. 

854. 
Holmes  V.  Holmes,  etc.,  Man.  Co.,  37 

Conn.  278.    p.  202. 
Holmes  v.  Hunt,  122  Mass.  505.    p. 

563. 
Holmes  v.  Johnson,  42  Pa.  St.  159. 

p.  200. 
Holmes  v.  Mallett,  1  Morris  (la.),  82. 

p.  358. 
Hulyland,  Ex  parte,  11  Vesey,  10.    p. 

179. 
Homer  v.  State  Bk.    p.  34. 
Homniel  v.  Devinney,  39  Mich.  522. 

p.  59. 
Hopewell  r.  De  Pinney,  2  Camp.  113. 

p.  202. 
Hopkington  v.  Springfield,  12  N.  H. 

828.    p.  320. 
Hopkins  V.  Kent,  17  Md.  117.    p.  78. 
Hopkiik  V.  Page,  2  Brock.  20.     pp. 

308,  330,  342. 
Hopper  V.  Fisher,  2  Head,  258.     p.  29- 
Hopper  V.  State,  19  Ark.  743.     p.  401. 
Hopps  V.  People,  31  111.  S85.     p.  4  JO. 
Hood  V.  Hood,  2   Grant's  Cas.  229. 

p.  1G4. 
Hood  V.  Pearson,  67  Ind.  308.     p.  35. 
Hooper  V.Howell,  52  Ga.  ."22.     p.  321. 
Horan  t>.  Weiler,  41   Penn.  St.  470. 

pp.  81,  270. 
Horno  v.  State,  1  Kan.  42.     p.  438. 
Horner  v.  State  Bk.,  1  Ind.  130;  48 

Am.  Dec.  355.     p.  27. 
Hoskins  v.  State,  11   Ga.  92.     p.  262. 
Hospell  V.  Collins,    p.  112. 
Houstman  v.  Thornton,  Holt  N.  P. 

242.     p.  227. 
Houghtaling  v.  Ball,  19  Mo.  84.     p. 

372. 
Houliston   V.  Smyth,  2   C.  &  P.  24. 

p.  90. 
Hourtienne  v.  Schnoor,  33  ^lich.  274. 

p.  54. 
Houston  V.  Houston,  4  Ind.  139.     p. 

35. 
Houston  I'.  Perry,  3  Tex.  390.    p.  55. 


n.>w,  V.o,  1  Rw.  &  T.  53.     p.  201. 
Howard  v,  Boormun,  17  Wis.  459.    p. 

93. 
Howard  v.  Mert,  64  N.  Y.  202.     p. 

506. 
Howard  i>.  Rockwell,  1  Doug,  (Mich.) 

315.    p.  201, 
Howard  v.  Shurtleff,  2  Mete.  20.    p. 

310, 
Hoyt  V.  Newbold,  45  N.  J.  (.L)  219. 

p.  200. 
Hoyt  V.  Soeley,  IS  Conn.  SIO.     p.  70. 
Huckvale,  In  re,  L.  R.  1  P.  &  D.  375. 

p.  83. 
Hudgins  v.  State,  01  Ga.  182.     p.  35. 
Hudson  V,  Messick,  1  Houst.  275.     p. 

34. 
Hudson  V.  Pvcel,    5   Pa.  St.  279.    p. 

386. 
Hudson  V.  State,  9  Terg.  408.    p.  480. 
Hughes  V.  Debnam,  8  Jones  (L.),  129. 

p.  85. 
Hughes  V.  Edmunds,  9  Wheat.  497, 

p,  316. 
Hughes  V.  Hughes,  54  Pa.  St.  241. 

p.  324. 
Hughes  V.   State,  8  Humph,   75.    p. 

518. 
Hughes  V.   "Wheeler,  8  Cow.  77.    p. 

354. 
Hulick  V.   Scovil,  9  111.  159,     p.  304. 
Hull  V.  Augustine,  23  Wis.  383.    p. 

370. 
Hull       State,  7  Tex.,  App.  593.    p. 

583. 
Hummell  v.  State,  17  Ohio  St.  628. 

p.  70. 
Humphreys  v.  Guilow,  13  N.  H.  385. 

387. 
Humphrey  v.  Humphrey,  3  P.  Wms. 

395,    p.  314. 
Hunt  V.   Hunt,  3  Mete.  175;  37  Am. 

Dec.  ISO.    p.  576. 
Hunt  V.  Massey,  2  B.  &  Ad.  902.    p. 

89. 
Hunt  V.  Matthews,  1  Yern.   408.     p. 

141, 
Hunt  V.  Pond,  67  Ga.  578.     p.  .?5. 
Huut  V.  Stewart,  7  Ala.  527.    p.  218. 


Ivi 


TABLE   OF   CASES   CITED. 


Hunt  V.  XJttsr,   15  Ind.  318.     p.  421. 
Hunter  v.  Bennett,  15   La.  Ann.  715. 

p.  163. 
Hunter  v.  Lauder,   8  Canada  L.  J. 

(n.  s.)  17.    p.  148. 
Hunter,    The,    1    Dods.    Adm.    480. 

pp.  150,  151. 
Huntington  v.  Finch,  3  Ohio  St.  445. 

p.  386. 
Hurst  V.  McNeil,  1  "Wash.   C.  C.  70. 

p.  403. 
Hutchins  v.  Flintge,  2  Tex.  473.     p. 

90. 
Hutchins  v.  Van  Bokkelen,   34  Me. 

126.    p.  49. 
Hutton,  Kc,  1  Curt.  595.     p.  224. 
Huzzard  v.  Trego,  35  Pa.  St.  9.    p. 

55. 
HyJrick  v.  Burke,  30  Ark.  124.     pp. 

358,  SCO. 
Hynes  v.  McDermott,  82   N.  Y.  44. 

p.  860. 

I. 

Illinois  Cent.  E.  Co.  v.  Cragin,  71  111. 

184.    p.  192. 
Illinois  Cent.  K.  Co.  v.  Houck,  72  111. 

35.  285.    p.  102. 
Illinois  Cent.  R.  Co.  v.  Johnson,  40111. 

p.  38. 
Illinois  Cent.  R.  Co.  v.  Phillips,  49  111. 

77.  234.    p.  102. 
Illinois  Cent.  E.  Co.  v.  Wren,  43  111. 

p.  58. 
Illinois  Loan  Co.  v.  Bonner,  75  111. 

315.  pp.  106,  108,  110. 
Inches  v.  Leonard,  12  Mass.  379.    pp. 

318,  320. 
Ingalls  V.  State,  48  Wis.  047.     p.  274. 
Ingraham  v.   Baldwin,   9  N.   Y.  45. 

p.  330. 
Ingram  v.  Ingram,  4  Jones  (L.),  188. 

p.  57. 
Inglish  V.  Breneman,  9  Ark,   122 ;  47 

Am.  Dec.  735.    p.  382. 
Inge   V.  Murphy,    10  Ala.    895.     p. 

367. 
Inhabitants  v.   Inhabitants,  6   Allen 

608.    p.  172. 


Inhabitants  New  Portland  v.  Inhab- 
itants of  Kingsfield,  55  Me.  370.  p. 
93. 

Inhabitants  v.  Eoot,  18  Pick.  318.  p. 
55. 

Innes  v.  Campbell,  1  Eawle,  75.  pp. 
192,  200. 

Irvine  v.  Irvine,    p.  174. 

Isabella  v.  Pecot,  2  La.  Ann.  387. 
p.  176. 

J. 

Jacob  V.  U.  S.,  1  Brock.  528    p.  47. 
Jackson  v.  Astor,  1  Pinney  137;  39 

Am.  Dec.  231.     p.  34. 
Jackson  v.  Boale,  20  Johns.  187.    p. 

304. 
Jackson  v.  Clark,  18  Johns.  347.    p. 

93. 
Jackson  v.  Claw,  18  Johns.   (N.  Y.) 

347.    p.  435. 
Jackson    v.  Davis,  6  Cow.   130.    p. 

316. 
Jackson  v.  Etz,  5  Cow.  319.     p.   197. 
Jackson  v.  Hudson,   3  Johns.  375;  3 

Am.  Dec.  500.    p.  410. 
Jackson   v.   Irvin,   2  Camp.   48.    p. 

1G5. 
Jackson  v.  King,  5  Cow.  237;  15  Am. 

Dec.  468.     p.  257. 
Jackson  v.  Miller,  6  Wend.  228 ;  21 

Am.  Dec.  316.    p.  140. 
Jackson  v.  Moore,  13  Johns.  516;  7 

Am.  Dec.  379.    p.  404. 
Jackson  v.  Murray,  7  Johns.  6.    pp. 

404,  410. 
Jarbor  v.   McAfee,   7  B.  Monr.   282. 

p.  194. 
Jackson  ij.  McCall,  10   Johns.  377;  6 

Am.   Dec.  343.     pp.  304,  410,  427. 
Jackson  v.  McVej',   18    Johns.   330. 

pp.131,  142. 
Jackson  v.  New  Mil  ford  Bridge  Co., 

84  Conn.  266.    p.  27. 
Jackson  v.   Osborn,  2  Wend.  535;  20 

Am.  Dec.  040.    p.  384. 
Jackson  v.  Pesked,  1  M.  &  S.  237. 

p.  35. 


TABLE    OF    CASES    CITED. 


Ivii 


Jackson  v.    Phipps,    12    Julins.  421. 

p.  804. 
Jackson  v.  Pierce,  10  Johns.  415.    p. 

842. 
Jackson  v.  Potter,  4  Wend.  G72.     p. 

163. 
Jackson  v.  Pratt,  10  Johns.  381.     p. 

818. 
Jackson  v.  Schoonmaker,  7  Johns.  13. 

p.  404. 
Jackson  v.  Schafer,    11    Johns.   317. 

p.  56. 
Jackson  v.  Sharp,  9  Johns.  1G5.    pp. 

404,  415. 
Jackson  v.   Smith.   7  Cow.   717.     p . 

18C.. 
Jackson   v.    Wood,   12  Johns.    242. 

pp.  316,  318. 
Jackson  v.    Woolsey,  10  Johns.  453. 

p.  159. 
Jackson  v.  Van  Dusen,  6  Johns.  154. 

p.  179. 
Jackson    School    Tp.  v.  Hadley,  59 

liul.  634.     p.  54. 
Jakway  v.   Jenison,  46    Mich.  521. 

p.  54. 
James  v.  Brown,5  B.  &  Aid.  243.    p. 

47. 
James  v.  Howard,  2  G.  «&  Dav.  264. 

p.  34. 
James  R. ,  etc.,  Co.  v,   Littlejohn,  18 

Gratt.  53.    pp.  98,  276. 
Jarmain  v.   Cooper,  G  M.  &  W.  828. 

p.  259. 
Jarvis  V.    Albro,    67  Me.   310.    pp. 

808,  316. 
Jay   V.    Carthago,    48  Me.    853.    p. 

47. 
Jayne  v.  Price,  6  Taunt.   326.     pp. 

448,  5'^3. 
Jee  y.  Audley,  1  Cox,  325.    p.  303. 
Jefferson  i».  Mayor,  7  Ga.   181.     p. 

64. 
Jefferson  County  v.  Ferguson,  13111. 

83.    p.  808. 
Jells  t).  Ballard,   1  B.   &  P. 408.    p. 

465. 
Jenkins  v.  Pnrkhill,  25  InJ.  473.     p. 

64. 


Jenkins  w.  Pcckinpaugh,  40  Ind.  133 

p.  239. 
Jenne    v.  Ward,   2    Stark.    327.     p. 

146. 
Jim  u.  State,  5  Humph.  146.     p.   512. 
Joannes  v.  Bennett,  5  Allen,  169.     p. 

157. 
Johanna r.  Emelio,  The,  18  Jur.  703. 

p.  150. 
John  Hancock  Ins.  Co.  v.  Moore,  34 

iMich.  41.    p.  197. 
Johnson  v.   Carpenter,  7   Minn.  170. 

p.  85. 
Johnsonc.  Chambers,  12  Ind.  102.     p. 

370. 
Johnson  v.  Duke  of  Marlborough,  2 

Stark.  313.     p.  888. 
Johnson  v.  Farwell,  7  Me.  370.    pp. 

102,  277. 
Johnson  v.  Johnson,  1  Dessau.  595. 

p.  104. 
Johnson  v.  Long,    72   Mo.   210.     p. 

36. 
Johnson  v.  State,   17  Ala.   622.     pp. 

498,  507,  534. 
Johnson  v.  State,  47  Ala.  31.     p.  39. 
Johnson  v.  Slate,  10  Tex.  App.  577. 

p.  459. 
Johnson  v.  Underbill,     p.  558. 
Johnson  v.   U.   S.,  14  Ct.  of  CI.  276. 

p.  55. 
Jones  V.  Alderman,  104  Mass.  4G1.    p. 

54. 
Jones  V.  Fletcher,  41  Me.   254.    p. 

54. 
Jones  V.  Graham,  36  Ark.  383.    p. 

84. 
Jones  V.  Howland,  8  Mote.  306.    p. 

270. 
Jones  V.  Jones,  9  M.  &  W.  75.    p. 

254. 
Jones  t).  Knauss,  31  N.   J.   (Eq.)  609. 

p.  148. 
Jones  V.    Lewis,  8  W.   «S;  S.  15.    p. 

661. 
Jones  V.  ^luisbach,  26  Tex.   205.    p. 

65. 
Jones  w.  Murphy,  8  W.  &  S.  301.     p. 

147. 


Iviii 


TABLE    OF    CASES    CITED. 


Jones  V.  Nceloy,  72   111.  419.    p.  o"). 
Jones  V.  Newman,   1  W.   Bhick.  GO. 

p.  258. 
Jones  V.  Parker,   20  N.    H.   31.     p. 

250. 
Jones  V.  Kandall,  Cowp.  38.     p.  5. 
Jones  V.  Ilicketts,  7  Md.  108.    p.  264. 
Jones  V.  Rives,  3  Ala.  13.    p.  68. 
Jones  V.  State,  49  Ind.  540.    p.   518. 
Jones  V.  State,  26  Miss.    247.     p.  525. 
Jones  V.  Vestry  of  Trinity  Church,  19 

Fed,  Pvop.  59.     p.  68. 
Jones  V.   Wilder,  28   Minn.  239.     p. 

36. 
Jordan  v.  Ingram,  57  Ga.  92.    p.  35. 
Jordan  v.    Goblin,   12   Cal.  100.     p. 

83. 
Jordan  v.  Stewart,  23  Pa.  St.  246.    p. 

399. 
Joudin  V.  Boyce,    33  Mich.  802.    p. 

381. 
Justice  V.   Lang,  52   N.  Y.  823.    p. 

556. 


Kane  v.  Johnston,  9  Bosw.  154.  p.  176. 
Kansas  Pac.  K.  Co.  v.  Miller,  2  Cal. 

443.    p.  243. 
Kay  V.  Connor,  8   Humph.   624 ;  49 

Am.  Dec.  690.    p.  5. 
Keane    v.    Cannovan,     21    Cal.    291 

(1863).    p.  53. 
Kearles  v.  Christie,  47    Mich.  594. 

p.  36. 
Keeble's  Case.  Littleton,  370.     p.  195. 
•     Keech  v.  Rinehardt,  10  Pa.  St.  20.     p. 

239. 
Keeley  v.   Garner,   13  Ind.  400.     p. 

34. 
Keep  V.  Grannis,  3  Nev.  548.     p.   28. 
Kelley  v.   Drew,  12  Allen,   107.    p. 

585. 
Kelley  v.  Ford,  4  la.  140.    p.  77. 
Kelley  v.   People,  55  N.  Y.  573.     pp. 

548,  549. 
Kelly  V.   Creen,  53  Pa.  St.  303.     p. 

55. 
Kelly  V.  Drew,   12  i^len,   107.     p. 

449. 


Kelly  V.  Volney,  5   Pcnn.  L.  J.  300. 

p.  253. 
Kelsoe    v.    State,    47    Ala.   573.     p. 

493. 
Kempe  v.   Kennedy,  5  Cranch,  173. 

pp.  27,  30. 
KenduU  v.  Galvin,  15  Me.    131 ;   32 

Am.  Dec.  141.    p.  68. 
Kendall  v.  Kingston,  5  Mass.  524.     p. 

563. 
Kenny  v.  Public  Adm.,  2  Bradf.  319. 

p.  855. 
Kent  V.  Bottoms,  3  Jones    Eq.  69. 

p.  142. 
Kenton   Co.    Ct.   v.  Bank,  10  Bush, 

529.    p.  93. 
Kenyon  v.  Smith,  24  Ind.  11.    p.  370. 
Kermott  v.  Ayer,    11  Mich.  181.    p. 

370. 
Kern  v.  Strasburger,  71   111.   303.    p. 

35. 
Kershaw  v.  Wright,  115  Mass.  361. 

p.  185. 
Kerwick  v.  Steelman,  44  Ga.  197.    p. 

35. 
Keyworth  v.  Hill.  3  B.  &  Aid.  685  (5 

E.  C.  L.  422).    p.  299. 
Kidder  v.  N orris,  18  N.  H.  632.    pp. 

101,  276. 
Kidder  v.  Stevens,  60  Cal.  415.    p. 

103. 
Kidgill  V.  Moor.  9   C.  B.  864.    p.  85. 
Kilburn  v.  Bennett,  8  Mete.  199.    p. 

172. 
Kilburn  v.  Ritchie,  2  Cal.  14-5.     p.  3-5. 
Kilcrease  v.  Blythe,  6  Humph.  379. 

pp.  27,  29. 
Kilpatrick  v.  Brashaer,  10  Heisk.  372. 

pp.  329,  836,  842. 
Kilpatrick  v.  Frost,  2   Grant's   Cas. 

196.    p.  47. 
Kimball  v.  Lampre3%  19  N.  H.   215. 

p.  55. 
Kimball  v.  Whitney,  15  Ind.  280.     p. 

420. 
Kincaid  v.  Howe,  10  Mass.  203.    pp. 

258,  577. 
Kincaid  v.  Kincaid,  8  Humph.  17.    p. 

347. 


TABLE   OF   CASES   CITED. 


lix 


Kinclielow  v.  State,  5  Uuinph.  9.     p 

483. 
King  V.  Arundel,  Hob.  100.    p.  140 
Xiiii^  V.  Coulter,  2  Grant's  Cas.  77.   p 

8:3. 
Kin^'  V.   Dixon,  3   M.  &   S.    12,     pp 

2h-2,  407. 
Ku'r  V.  Doolittlp,  1  Head,  77.    p.  14 
King  V.  Fell,  1  Bald.  SS'J.     p.  28. 
King  V.  Fuwler,  11  Pick.  S02.     pp 

192,  197. 
King  V.  Uarvey,  3  D.  &  R.  4G4.     p 

2G2. 
King  V.  Hawkins,  10  East,  211.     pp 

94,  'ISO. 
King  V.  Hopkins,  57   N.  H.  334.     p 

5i;8. 
King  V.  Inhabitants  of  All  Saints,  7 

B.  &  C.  785.    p.  SO. 
King  V.   Inhabitants  of  Gloucester- 

sliirP,   2   Barn.    &  Aid.   886.     pp. 

448,  583,  584. 
King  V.  Inhabitants  of  Hnrborne,   2 

Ad.  &E.  510.    pp.  448,  534. 
King  V.    Inhabitants  of  Hulcott,    6 

T.  R.  585.    p.  28. 
King  V.  Inhabitants  of  Sonaton,  5  Ad. 

&E;1.  180.    p.  118. 
King  V.  Kelly,  28  Ind.  89.     p.  75. 
King  V.  Liiffc,  8  East,  12.    p.  1 15. 
King  V.  Lyme  Regis,  1  Dougl.  159.    p 

34. 
King  V.  Paddock,  18  Johns.  141.     p 

200. 
King  V.  State,  9  Tex.  App.  553.    p, 

459. 
King  V.  Stevens,  Burr.  4337.    p.  311 
King  V.  Turner,   5  M.  &  S.  200.     p 

4G5. 
King  V.  Wbiston,  4  Ad.  &  Ell.  667 

p.  56. 
Kingston   V.  Leslie,  10   S.  &  R.  883 

pp.  405,  406. 
Kinnoy   v.  Uosea,  3   Harr.  (Del.)  77 

pp.  370. 
Kinsler  v.  Holmes,  2   S.  C.  483.     p 

820. 
Kiri  hner  v.   Lewis,  27  Ind.  22.     p 

853. 


Eirkpntrick  v.  Lnngpher,  1   Cranch. 

C.  C.  85.    p.  315. 
Klein  v.  Landman,  29  Mo.  259.     pp. 

419,  585. 
Knapp  V.  White,  23   Conn.   529.     p. 

272. 
Knickerbocker  v.  People,  43  X.  Y. 

177.     p.  516. 
Knight  tj.  Clements,  8  Ad.  &  El.  215. 

p.  388. 
Kniglitr.  Coleman,  19  N.  H.  118;  45 

Am.  Dec.  147.     p.  414. 
Knight  V.  Nepean,   2  M.  &   "\V.  895. 

p.  201. 
Knight  V.  Pugh,  4  W.  &  S.  415.     p. 

77. 
Kinselyt).  Sampson,  100  111.  573.    p. 

89. 
Knowles,  Ex  parte,  2  Cranch  C.  C. 

576.    p.  93. 
Knowlton  v.  Culver,   1    Chand.  214. 

p.  36. 
Kraum  v.  McDowell,  8  N.  &  S.  138. 

p.  561. 
Krifl  V.  Com.,  6  Bush  (Ky.),  302.     p. 

459. 


Lackawanna  Iron  Co.  v.  Fales,  55  Pa. 

St.  90.     p.  55. 
Lackey  v.  Bostwick,  54   Oa.  45.    p. 

35. 
Lady  Bryan   Gold,  etc.,  Co.  v.  Lady 

Bryan  Mining  Co.,  4  Mo.  414.    p. 

36. 
Lady  Stafford  v.  Llewellin,  Skin.  78. 

p.  417. 
Lady  Strathmore  v.  Bowes,  1  Yes.  22. 

p.'l45. 
Lady  Superior  v.  !McNamara,  3  Barb. 

Ch.  375;  49  Am.  Dec.  184.     p.  303. 
Laing  v.  Colder,  8  Pa.  St.   479;  49 

Am.  Dec.  533.    p.  5. 
L;ij..ye  V.  Priinm,  3  ilo.  529.     p.  200. 
Lake  V.  People,  1  Park.  C.  C.  [>uO.    p. 

493. 
Lnkin  v.  Lakin.  34  Beav.  443.     p.  239. 
Lambo  V.  Orfon,  29  L.  J.  (Ch.)  283. 


p.  201. 


Ix 


TABLE   OF   CASES   CITED. 


Lancaster  v.  "Washington  L.  Ins.  Co., 

,62  Mo.  127.    pp.  230,  232,  239. 
Lancej'  v.  Bryant,  30  IMe.  4G6.    p.  13. 
Landis  v.  Scott,  32  Pa.  St.  498.    pp. 

148,  149. 
Landr}'  v.  Martin,  15  La,  1.    p.  47. 
Lane  v.  Farmer,  13  Ark.  64.     p.  347. 
Lano  V.  Ironmonger,  13  M.  &  W.  368. 

p.  280. 
Lanergan  v.  People,  39  N.  Y.  41.    pp. 

279,  542. 
Lane's  Case,  1  De  G.,  J.  &  S.  504. 

p.  82. 
Langston  v,  Marlis,   68   Ga.  435.    p. 

35. 
Lapsley  v.  Grierson,  1  H.  L.  Cas.  500. 

pp.  448,  584. 
Laramore  v.  McKenzie,  CO  Ga.  532. 

p.  35. 
Larimore  v.  Wells,  29  Ohio  St.  13.    p. 

347. 
Lathrop  v.  Donaldson,  22  la.  235.    p. 

77. 

Laughlin  v.  Chicago,  etc.,  R.  Co.,  28 

Wis.  204 ;  9  Am.  Rep.  493.    p.  1C6. 

Lauvre,  Re,  6  La.  Ann,  530.    p.  54, 

Lavender  v.  Hudgens,  82  Ark.  764, 

pp,  94,  436, 
Lawhorn  v.  Carter,  11  Bush,  7,    p. 

656. 
Lawrence,  The,  15  Fed.  Rep,  635,    p, 

120. 
Lawrence  v.   State,  68  Ga.  289.    p. 

262. 
Laws  V.  Rand,  3  C.  B.  (n.  s.)  445.     p. 

89. 
Lawson  v.  Obenr,  7  Ala.  784.     p.  69. 
Lawson  v.  State,  20  Ala.  66.    p  492. 
Lawton  v.  Sweeney,  8  Jur.  694.    p. 

122. 
Lawton  v.  Rivers,  2  McCord  (S.  C), 

445;  13  Am. Dec.  741.    p.  405, 
Lay  V.  Lawson,  23  Ala.  377.     pp.  38, 

423. 
Leak  v.  Elliott,  4  Mo.  450.    p.  370. 
Learned  v.  Cooley,  43  Miss,  709.    p. 

232,  ^ 

Leavonworth  v.  Brockwaj',  2  Hill,  201, 
p,  372. 


Leavitt  v.  Smith.  14  Ala.  279.    p.  34, 
Leconfleld  v.  Lonsdale,  L.  R.  5  C.  P. 

657.    p.  404. 
Ledoux  V.  Jamis,on,  18  La.  Ann.  130. 

p.  54. 
Leo  V.  Johnstone,  L.  R.,  1  H.  L.  Sc. 

420.    p.  35. 
Leo  V.  Mendel,  40  111.  359.    p,  257, 
Lee  V.  Wharton,  11   Tex.  61,     p.  65, 
Leedom  v.  Lombaert,  80  Pa,  St.  381. 

p.  55. 
Leeds  v.  Cook,  4  Esp.  256.     p.  146. 
Logg  V.  Legg,  8  Mass.  99.    p.  370. 
Legge  V.  Edmonds,  25  L.  J.  (Ch.)  125. 

pp.  115,  118. 
Lehman  v.  Tallahassee  Man.   Co.,  64 

Ala.  667.     p.  77. 
Leigh  ton  v.  Orr,  44  Iowa,  680.     p.  98. 
Lei  per  v,  Irwin,  5  Yerg.  97.    p.  329. 
Leland   v.  Cameron,  81  N,  Y,  115. 

p,  55, 
Leman  v.  Neunham,   1  Ves.  sr,    5L 

p.  316, 
Lenoir  v.  Rainey,   15  Ala.   667,    p. 

404. 
Lepoit  V.  Browne,  1   Salk.  7.    pp. 

259,  577, 
Leport  V.  Todd,  32  N,  J.  L.  128.    p. 

163. 
Lesley  v.  Nones,  7  S.  &  R.  4         p. 

320. 
Leslie  v.  Fisher,  62  111.  118.    p.  50. 
Letcher  v.  Kennedy,  3  J.   J.  Marsh, 

701.    p.  34. 
Letts  V.  Brooks,  Hill  &  Denio,   361. 

p.  193. 
Levers  v.  VanBuskirk,  4  Pa.  St.  314. 

p.  SCO. 
Levy  V.  Hodges,  Jao.  585.    p.  303. 
Levy  V.  Merrill,  52  How.  Pr.  SCO,    p. 

308. 
Lewis  V.  Morley,  4  Dev.   &  B.  (L.) 

323  ;  84  Am.  Dec.  379.  p.  2:;0. 
Lewis  V.  Post,  1  Ala.  65.  p.  C8. 
Leykiiuff  v.  Ashford,  12  Moore,  281. 

p.  388. 
Life  and  Fire  Ins.   Co.  v.  Mechanic 
F.  Ins.  Co.,  7  Wend.  31.     pp.  130, 
138. 


TABLE   OF   CASES   CITED. 


Ixi 


Lilleshall,  Re.,  7  Q.  B.  1  j3.    p.  171 
Lilly  V.  Waggoner,   27  111.  895.     pp 

170,  280. 
Lincoln  v.   Battelle,   6   Wend.    47G 

p.  370. 
Linn  v.  Montross,  5  Tex.  511.     p.  55, 
Liiiscott  V.   Trask,    85  Me.   150.     p 

420. 
Lindsay  v.  Conn.,  etc.,  R.  Co.  27  Vt 

6-13.     p.  102. 
Lipscomb  v.  DeLamos,  68  Ala.  592 

840. 
List  V.  Rodney,  83  Pa.  Hi.  483.    p, 

803. 
Little  V.  Herndon,   10  Wall.  81.    p 

881. 
LitLlo  V.  Marsh,   2   Ired.  Eq.  28.     p, 

140. 
Little  V.  Palister,  4  Me.  209.     p.  419 
Littlcfit'ld  V.  Inhabitants,  50  Me.  475 

p.  173. 
Litllojohn  V.  Ferguson,  18  Gratt.  53. 

pp.  98,  276. 
Little  Rock,  etc.,  R.  Co.  v.  Finley,  37 

Ark.  502.    p.  103. 
Little  Rock,  etc.,  R.  Co.  v.  Henson, 

38  Ark.  415.    p.  103. 
Livingston    v.  Livingston,   4  Johns 

Ch.'287.    p.  816. 
Livingston  v.  Rogers,   2  Johns.  Cas 

488.    p.  159. 
Lobb  V.  Stanley,  5  Q.  B.    574.    p, 

134. 
Locke  V.  Huling,    24  Tex.  oil.    p 

870. 
Lockhart  v.  White,  18  Tex.  102.     pp, 

44^,  449,  583,  584. 
Loeffner  v.  State,   10   Ohio   St.  598 

p.  459. 
Lomiix  V,  Holmdon,   2   Str.  940.     p 

803. 
Long  V.  McDougald,    23  Ala.  413 

p.  84. 
Long  V.  State,  46  Ind.   583.    pp.  86, 

93. 
Loomis  V.  Green,  7  Me.  886.     p.  140. 
Loomis  I'.  Mowrj-,  8  Hun,   811.    p. 

77. 
Loomis  V.  Riley,  24  111.  307.     p.   13. 


Lopez  V.  Andrews,  3  Man.  &  R.  320. 

p.  417. 
Lord  Pelham  v.  Pickingill,  1   T.   R. 

381.    p.  427. 
Loring  V.  Steinman,  1  Mete.  210.     p. 

200. 
Louden  v.  Walpole,  1  Ind.  821.    p. 

205. 
Louisiana  v.  Carr,   25  La.   An.  407. 

p.  551. 
Lowe  V.  Foulke,  103  111.  58.     p.  102. 
Lowe  V.  Stowell,  4  Jones  L.  235.    p. 

315. 
Lowell  V.  Todd,  15  U.   C.  C.  P.  306. 

p.  122. 
Loza  V.  State,  1  Tex.  App.  488.    p. 

274. 
Lucas  r.  Brooks,  23   La,  Ann.   117. 

pp.  69,  148. 
Lucas    V.   Ladew,    28  Mo.    342.    p. 

8.59. 
Lucas    V.  Novisdienski,    1  Esp.   296. 

p.  352. 
Ludlow  V.  Van  Camp,  6  N.  J.  Eq.  113 ; 

11  Am.  Dec.  529.    p.  308. 
Lum  V.  State,   11   Tex.  (App.)  483. 

p.  176. 
Luinley  v.  Wagner,  1  De  G.  M.  &  G. 

604.    p.  121. 
Luno  V.  Boston  Marine  Ins.  Co.,   6 

Fed.  Rep.  568.    p.  102. 
Lushington  v,  Boldero,   15  Beav.  1. 

p.  803. 
Lyddon  v.  Ellison,  19  Beav.   505.    p. 

"803. 
Lyle  V.  Bradford,  7  T.  B.  Mon.  116. 

p.  90. 
Lynch  v.  Com.,  77  Pa.  St.  205.    p. 

459. 
Lynde  v.   Dennison,   3   Conn.     891. 

p.  808. 
Lyon  V.  Adde,  63  Barb.  89.    p.  808. 
Lyon  V.   George,  44  Md.    295.    pp. 

"l7,  73. 
Lyon  V.  Green  Bay,  etc.,  R.   Co.,  42 

Wis.  538.    p.  55. 
Lyon    V.   Guild,   5    Ileisk.     175.     p. 

'327. 
Lyon  V.  Odell,  65  N.  Y.  23.     p.  308. 


ixii 


TABLE    OF   CASES   CITED. 


Lyon  tJ.  nicbmond.  2  Johns.  Ch.  51. 

,8. 
Lytle  V.  Colts,  27  Pa.  St.  193.     p.  55. 

M. 

Madden  v.  State,  68  Ga.  5G3.     p.  35. 
Magce    V.   Scott,     9  Cush.    148.     p. 

104. 
Ma-uiro  v.  People,  5  N.  T.  (T.  &  C.) 

682.     p.  519. 
Mahoney  v.  iliddleton,  41  Cal.  41.    p. 

35. 
Main,   In  re,   1   Sw.  v.  Tr.  225.    p. 

225. 
Malarin  v.  IJ.  S.,  1    Wall.    288.     p. 

381. 
Male  V.  Eoberts,  3  Esp.  163.     p.  369. 
Mallory  v.   StoUer,  6  Ala,   801.    p. 

304. 
Malpas  V.  Clement,  19  L.  J.  (Q.  B.) 

4C5.    p.  89. 
W  anchester  Bank  v.  Fellows,  28  N.  H. 

394.    p.  51. 
Manning  v.  Ins.  Co.,  100  U.    S.  693. 

p.  569. 
Mansfield  Coal,  etc.,  v.   McEnery,  10 

Morris,  185.     p.  573. 
Mardis  v.   Shackleford,    4  Ala.   493. 

p.  68. 
Margaret    Gottfried's    Case,   4  Leg. 

Obs.  101.     pp.  496,  498. 
Marine  Investment  Co.  v.  Haviside, 

L.  R.  5H.  L.  Cas.624.    p.  83. 
Markel    v.   Evans,  47  Ind.   828.    p 

27. 
Marr  v.   Gilliam,  1    Cold.   488.      p 

403. 
Marshall  v.  Oakes,  51   Me.  809.     p 

279. 
Marshall  v.  Stevens,  8   Humph,  159 

47  Am.  Dec.  601.     p.  59. 
Marshall  v.   Toms,  5  Q.  B.  115.     p 

50. 
Marsters  v.  Lash,  51  Cal.  623.     p.  370 
Marston  v.  Downes,   1  Ad.  &  Ell.  32 

p.  135. 
Marston  v.  Forward,  6  Ala.  347.    p. 

77. 


Marston  v.  Wilcox,   2  111.   270.      p. 

844. 
Martin  v.  Fishing  Ins.   Co.,  20  Pick. 

889 ;  32  Am.  Dec.   220.     pp.   102, 

16G. 
Martin  v.  Hazard  Pow.  Co.,    2  Col. 

597.    p.  370. 
Martin  v.  State,  28  Ala.  71.    p.  541. 
Martindale  v.  Falkner,  2  C.   B.  715. 

pp.  7,  10. 
Mason  v.  Mason,  1  Meriv.  807.    p. 

241. 
Mason  v.  State,  82  Ark.   239.    p.  435. 
Mason  r.  Wash,  Breesc,  16.     p.  370. 
Mather  v.  Trinity  Church,  3  S.  &  K. 

509;   8  Am.  Dec.   663.      pp.   404, 

416. 
Matthews  v.  Coalton,   9  Mo.  705.     p. 

881. 
Matthews  v.  Lanier,  83  Ark.  91.     p. 

95. 
Matthews  v.  Offley,  3  Sumn.  115.    p. 

564. 
Matthews  v.  State,  9  Tex.  (App.)  108. 

p.  537. 
Mattcson  v.  Ellsworth,  33   Wis.  488. 

p.  353. 
Math  i as  w.  Misnard,  2  C.  &  P.  353. 

p.  880. 
Maverick  v.  Austin,  1  Bailey,  59.    p. 

84. 
Mawich   v.  Elsey,  47    Mich.  10.    p. 

36. 
Maxwell  v.  Deens,  46   Mich.  35.     p, 

86. 
Maxcy  v.  Williamson  Co.,  72  111.  206. 

35. 
May  V.    Gamble,    14  Fla.   467.      p. 
.    853. 
Maybee  v.  Sniffen,  2  E.  D.  Smith,  L 

p. 384. 
Mayhcrr.  People,  10  Mich.  212.     pp. 

271,  473. 
Mayhugh,   Rosenthal,  1    Cinn.  Sup. 

Ct.  492.   p.  200. 
Maynard   v.  Maynard,  10  Mass.  456. 

p.  303. 
Mayor  of  Atlanta  v.  Perdue,  50  Ga. 

607.     p.  72. 


TABLE   OF   CASES    CITED. 


Ixiii 


Mayor    of    Baltimoro  v,   rJaltimnrc, 

etc.,  II.  Co.,  6   Gill,   288 ;  48  Am. 

Dee.  5C0.     p.  G8. 
Miiyor  of  BuUimoro  v.  Noraian,  4  Md. 

852.     pp.  45:1,  589, 
Miiyor     of    Kingston    v.    Horner,    1 

Cowp.  102.     pp.  3.30,  427. 
Mead  V.  Parker,    115  Mass.   413.    p. 

201. 
Mears  v.  Graham,  8  Blackf.  144.    pp. 

6,  2(34. 
Mechanic's  Bk.  t;.  Wright,  53  Mo.  153. 

p.  356. 
Mechanic's,   etc.,  Bk.  v.  Union  Bk., 

22  Wall.27r,.    pp.27,  47. 
Medlock  V.  Brown,  4  Mo.  379.    p.  20. 
Mcech  V.  Smith,  7  Wend.  315.     pp. 

IG,  73,  557. 
Meighen  v.  Bank,  25   Penn.  St.  288. 

p.  185. 
MelJrura  v.  Clark,  Morris  (la  ),  130. 

p.  89. 
Mellcdge  V.  Boston  Iron  Co.,  5  Cush. 

158.    pp.  353,  354. 
Melvin  v.  Locks  &  Canals,  17  Pick. 

255.    p.  403. 
Melvin  v.  Stevens,  84  K  C.  78,     p.  70. 
Mendenhall  v.  Gateh',   18  Ind.    150. 

p.  358. 
Meiikins  v.  Lightner,  18  111.  282.     p. 

179. 
Mercer  v.  Doe,  6  Ind.  SO.     p.  58, 
Merchant  v.  North,  10  Ohio  St.  251. 

p.  36. 
Merchants'  Dis.  Trans.  Co.  v.  Joesting, 

89  111.  152.    p.  35, 
Meredith  v.   Santa,    Clar.   Min,    Co. 

lCal.617.     p.  34. 
Merrill  v.  Douglass,  14  Kas.  304.    p. 

59. 
Morrill  v.  Emery,   10  Pick.  507.    p. 

304. 
Merrill  v.  Khodes,   37   Ala.  452.    p. 

304. 
Merrills  v.  Swift,  18   Conn.    207;  46 

Am.  Dec.  315.     p.  303. 
Merrit f.  Baldwin,  6  Wis.  4.';9.     p.  34. 
M'rrilt  V.  Thompson,  1  Hilt.  550.     p. 

224. 


Mervin  v.  Ward,   15   Conn.  377.     p. 

1.3G. 
I\ressert>,  Lewis,  20  Tex,  219.     p.  370. 
Meyer  v.  McCabe,  73  Mo.   236.    p. 

858. 
Mickee  v.  Hicks,  19  Kns.  578.     p.  30, 
Miles  V.  Collins,  1   Mete,  (Ky.)  311, 

p,  300, 
Miles  V.  Knight,  12  Jiir.  COG.     p,  303. 
Miller  v.   Beates,  3  S.   &  P.   490;  8 

Am,  Dec.  658.    p.  2.';0. 
Miller  v.  Burke,  68  N.  Y.  625,    pp. 

18,  74. 
Miller  r,  Evans,  2  Cranch  C.  C.  72. 

p.  323. 
Miller  v.  Hackley,  5  Johns.  383.    p. 

186. 
ISIiller  V.  Hays,  20  Ind.  380.     p.  54. 
Miller  v.  Ins.  Co.,  2  McCord  (S.  C), 

336;  13  Am.  Dec.  734.    p.  102. 
:Miller  v.  Jones,  32  Ark.  337.    p.  124. 
Miller  v.  Kingsbury',  8  Fla.  356.     p. 

35. 
Miller  v.  Mclntyrc,  9  Ala.  638 .     p. 

77. 
Miller  v.  People,  39  111.  400.    p,  542. 
Miller  v.  Smith,  16  Wend.  425,    p. 

320. 
Miller  v.  Southwestern  R.  Co.,  55  Ga. 

143,     p.  58, 
Miliken  v.  Martin,  66  111,  13.     p.  331, 
[Millay  v.  Butts,  So  Me.  139,     p.  420, 
Milledge  v.  Gardner,  33  Ga.  397,    p. 

330, 
Milleham's  Trusts,  15  Bcav.  537.    p. 

238. 
Millner's Estate,  L.R.  14  Eq.  245,    p. 

245, 
Million  V.  Riley,  1  Dana,  359 ;  25  Am. 

Dec.  149.    p.  405, 
Mills  V.  Bk.  of  U.  S.,  1  Wheat.  431. 

p.  17,  73. 
Mills  V.  Hyde,  19  Yt.  59.     p.  347. 
^lills  V.   Johnson,   17  Wis.   598.    p. 

55. 
Miltenbergeru.  Coyle,  27  Pa.  St.  170. 

p.  154. 
Minor  v.   Edwards  12   Mo.  137;  49 

Am.  Dec.  121,     p.  G8, 


Ixiv 


TABLE   OF   CASES   CITED. 


Minor  v.   ilechanics'  Bk.,  1   Pet.  46 

p.  35. 
Minter  v.  Crommelen,   18   How.   87 

p.  55. 
Mitchell  V,   Bromberger,  2  Nev.  53 

p.  36. 
Mitchell  f.  Mitchell,  8  Ala.  421.    p 

304. 
Mitchell  V.  Napier,  22  Tex.  120.    p 

120. 
Mitchell  V.  Kyan,  8  Ohio  St.  377.    p 

304. 
Mitchell  r.  State,  58  Ala.  417.     p.  39, 
Mitchell  V.  Walkor,  2  Aik.  (Vt.)  266; 

16  Am.  Dec.  710.    p.  405. 
Mobile  Fire  Ins.  Co.  v.  Miller,  58  Ga. 

420.    p.  35. 
Mobley  v.  Ryan,  14  111.  51.    p.  78. 
Moehring  v.  Mitchell,  1  Barb.  Ch.  265. 

p.  242. 
Moffett  V.  Yarden,  5  Cranch  C.  C. 

658.     p.  200. 
Mondragon  v.  State,  33  Tex.  480.    p. 

618. 
Monroe  v.  Douglass,  5  N.  Y.  452.    p. 

370. 
Monson  v.  Palmer,  8  Allen,  551.     p 

565.  . 
Montgomery  v.  Bevans,  1  Sawy.  660. 

p.  201. 
Montgomerj'  v.  Bruere,  4  N.  J.  (L.) 

266.    p.  .S42. 
Montgomery  v.  Merrill,  62  Cal.  386. 

p.  34. 
Montgomery  v.  Montgomery,  3  Barb. 

Ch.  132.    p.  108. 
Montgomery     Plank     Eoad    Co.    v. 

■^Vebb,  27  Ala.  618.    p.  175. 
Mooers  v.  Bunker,  29  N.  H.  431.    p. 

257. 
Moore  v.  Bare,  11  Iowa,  198.    p.  67. 
Moore  v.  Briggs,  14  Ala.  700.    p.  34. 
Moore  v.  Des  Arts,  2  Barb.  Ch.  636. 

pp.  16,  72. 
Moore  v.  Harrisburg  Bank,   8  Watts, 

138.    p.  306. 
Moore  v.  Hawks,  2  Aik.  Vt.  390.     p. 

428. 
Moore  v.  ^'cil,  39  111.  256.    p.  84. 


Moore  v.  Parker,   12  Ired.   (L.)  123. 

p.  201. 
Moore  v.  Smith,  81  Pa.  St,  183.    p. 

324. 
Moore  v.  State,  52  Ala.  424.     p.  39. 
Moore  V.  Titman,  38  111.    358.    pp. 

38,  57. 
Mordecai  v.  Beall,   8  Port.  535.     p. 

124. 
Morford  v.  Peck,  46  Conn.  384.    p. 

100. 
Morgan  v.  Chetwynd,  4  F.  &  F.  451. 

p.  280. 
Morgan  v.  Ravey,  6  H.  «&  N.  265.    p. 

558. 
Morgan  v.   State,  12  Ind.  419.     pp. 

34,  39. 
Morgan  v.  Whitmore,  6  Ex.  713.    p, 

89. 
Moriarty  v.  London,  etc.,  R.  Co.,  L. 

R.  5  Q.  B.  314.    p.  143, 
Morris   v.  Angle,  42    Cal.    236.     p. 

35. 
Morris  v.  Davies,  5  CI.  &  F.  1G3.    pp. 

116,  117. 
Morris  v.  Davis,  5  CI.  &  F.  243.     pp. 

112,  115. 
Morris  v.  Landauer,  48  Iowa,  234.    p. 

261. 
Morris  v.  Ogles,  56  Ga.  592.     pp.  35, 

40. 
Morris  v.  State,  25  Ala.  57.    p.  84. 
Morris  v.  Vanderin,  1   Dall.  67.    p. 

386. 
Morrison  v.  N.  Y.  Cent.  R.  Co.,  63  N. 

Y.  643.    p.  192. 
Morse  v.  Presby,  25  N.  H.  302.    p. 

33. 
Mortimer  v.    Craddock,   17  Jur,  45. 

p.  141. 
Morton  v.  Rogers,  14  Wend.  570.    p. 

77. 
Mostyn  v.  Fabrigas,  Cowp.  174.     p. 

369. 
Motz  V.  Moreau,  13  Moore  P.  C.  376. 

p.  309. 
Moye  V.  State,  66   Ga.  740.    pp.  529, 

545. 
Moyesu.  Griffith,  35  Cal.  556.    p.  85. 


TABLE   OF   CASES    CITED. 


Ixv 


Muckleroy  v.  Bethany,  27   Tex.  5j1. 

p.  C97. 
Miillnly  V.  AValsh,  Irish  Rep.  G  C.  L. 

8l5.    p.  108. 
Mullen  V.    Pryor,    12   Mo.    307.     p. 

174. 
Muiiro  V.  Cooper,  5  Pick.  412.    p.  77. 
Munroe  v.  Gates,  48  Me.  4G3.    pp.  82, 

87. 
Murdock  v.  State,  08   Ala.  5G7.     pp. 

190,  581. 
Murphy  v.  Coats,  33  N.  J.(Eq.)  424. 

p.  804. 
Murphy  v.  Com.,  23   Grat.  9G0.     pp. 

2GG,  4G9. 
Murphy  V.  Collins,  121  ilass.  G.     p. 

873. 
Murphy,  In  ro,  8  C.  &  P.  310.    p.  47. 
Murphy  v.  Orr,  32  111.  489.     p.  1G7. 
Murphy  r.  People,  37   111.  447.     pp. 

266,  4C9. 
:Murphy  v.  State.  54  Ala.  178.    p.  SO. 
Murpliy  V.  State,   37  Ala.  142.    pp. 

26G,  469,  473. 
Murphy's  Case,  4  City  Hall  Eec.  42. 

p.  513. 
Murray  v.  Kelley,  23  Kas.  666.  p.  36. 
Murraj'  v.  ^Murray,  6  Ore.  18.  p.  583. 
Murray-,  Ro,  1  Curt.  596.  p.  241. 
Murrell  v.  State,  46  Ala.  89.  p.  537. 
Musser  v.  Price,  4  East,  197.  p.  3o4. 
Mussey  v.  "White,  3  Me.  200.  p.  55. 
Myers  v.  Com.,   83  Pa.    St.  141,     p. 

459. 
Myers  v.  Turner,  17  111.  179.    p.  19. 
McAlccrr.McMurray,  58  Pa.  St.  120. 

p.  5G9. 
McAlcxander  v.   Wright,    3   T.     B. 

M.'n.  189.     p.  50. 
McAllister  v.  Kcab,  4  Wend.  483 ;  8 

Id.  109.     pp.  16,  73. 
Mc'Alistcr  v.  State,  17  Ala.  434.     pp. 

179,  459. 
Mc Anally  v.  O'Neal,  56  Ala.  299.     p. 

358. 
McArthur  i'.  Carrie,  32  Ala.  75.     p. 

420. 
McC:ill  V  Doe,  17  Ala.  533.     p.  404. 
McCaller  v.  State,  49  Ala.  40.     p.  39. 
e 


McCnrteec.|Caramcl.  1  Barb.  Ch.  214 

p.  214. 
ilcCartuey  v.  Bone,  40  Ala.  533.    p 

320. 
MeCarty  v.  McCarty,  2  Strobh.  (L.)  (. 

47  Am.  Dec.  585.     p.  417. 
:McCkUau  V.  Crofton,  6  ile.  334.     p 

3:;G. 
31cClure  V.  Hill.  36  Ark.  273.     p.  28 
MLCuiub   V.    Wright,    5   Johns.    Ch 

2G3.    p.  197. 
McCord  V.  High,  24  Iowa,  336.    pp 

2;6,  469,  473. 
McCormick  v.  Fitzmorris,  39  Mo.  24 

p.  381. 
JJcCorry  v.  King,  8  Humph.  267 ;  39 

Am.  Dec.  165.     p.  404. 
McCraney  v.  Alden,  4G  Barb.  274.     p. 

372. 
McCulloch  V.  Norwood,  58  N.  Y.  567. 

p.  370. 
McCutchin  v.  Piatt,  22  Wis.  561.    p. 

55. 
McDonald  v.  Nelson,  2  Cow.  139;  14 

Am.  Dec.  43  (1823).     p.  53. 
McDonough  v.  O'Neil,  113  Mass.  92. 

p.  120. 
McDowell  V.  Goldsmith,  6   Md.  319. 


McGahey  v.  Alston,  2  M.  &  W.  206. 

p.  49. 
McGrews  v.  McGrews,  1  St.  &  P.  30. 

p.  34. 
:McGuire  v.  State,  37  Ala.  161.    p.  39. 
McKeo  V.  Copelin,  2  Cent.  L.  J.  813. 

p.  213. 
:McKec  V.  McKee,  48  Ga.  332.    p.  35. 
McKcnzie  v.  State,  26  Ark.  834.    pp. 

459,  5-52. 
McKenzle  v.  Stevens,  19  Ala.  692.    p. 

irs. 

Mclvinder  v.  Littlejohn,  4  Ired.  (L.) 

66,  198.     p.  336. 
McLain  v.  Winchester,  17  Mo.  49.    p, 

279. 
McLean  v.    Slate,  16  Ala.   672.     p. 

179. 
MoLear  v.  Ilunsicker,  29  La.  Ana 

539.     p.  358. 


Isrv'i 


TABLE    OF    CASES    CITED. 


McLellnn  v.  Crofton,  G  Me.  307.    pp. 

808,  340. 
McLcod  V.  Wakelp}',  3  C.  &  P.  311. 

p.  189. 
McMuhon  v.  Harrison,  6  N.   Y.  443. 

p.  181. 
McMuhon  V.  McElroy,  Ir.  Kep.  5  Eq. 

1.    p.  237. 
McMichacl  v.  Hardee,  68  Ga.  831.    p. 

85. 
McMicken  v.  Beauchamp,  2  La.  290. 

p.  881. 
McMinn  v.  "Whelan,  27  Cal.  300.     pp. 

33,  257. 
Mcilullan  v.  Mackenzie,  2  G.  Greene 

868.    p.  68. 
McNair  v.  Hunt,  5  Mo.  300.     p.  54. 
McNair  v.  Kagland,  1  Dev.  (Eq  )  533. 

p.  200. 
McXeill  V.  State,  47  Ala.  503.     p.  39. 
McNorton  v.   Akers,  24    Iowa,  3G9. 

pp.  84,  39. 
McNultj  V.  Hurd,  86  N.  Y.  547.    p. 

305. 
McPherson  v.  Cunliff,  11  S.  &  E.  422, 

p.  427. 
McEeynoldsu.McCord,  6  Watts,  288. 

p.  156. 

N, 

Naisor  v.  Brockwaj',  Eich.  Eq.  Cas. 

449.    p.  200. 
Napper  v.  Saunders,  Hutton,  118.    p. 

195. 
Nebbcttu.  Cunningbam,  27  Miss.  292. 

p.  54. 
Nelson  V.  Cent.  E.  Co.,  48  Ga.  152. 

p.  20. 
Nelson  v.  Lemmon,  10  Cal.  49.    p.  35. 
Nelson  v.  People,  13  N.  Y.  293.    p.  47. 
Newall  V.  Nicbols,  12  Hun,  604.     p. 

241. 
Newby  V.  Eeed,  Park  on  Ins.  85.     p. 

227. 
Newcomb  v.  Presbury,  8  Mete.  406. 

p.  890. 
Newell  V.  Nicbols,  75  N.  Y.  78.    p. 

243. 


Xew  Havon  Co.  Bk.  v.  Mitchell,  15 

Conn.  20;;.     p.  09. 
Newman  v.  Jenkins,  10  Pick.  515.    p. 

231. 
Newman  v.  Newman,  1   Stark.   101. 

p.  342. 
Newman  v.  Studlejs  5    Mo.  291.    p. 

403. 
New  Orleans,  etc.,  E.  Co.  v.  Jones,  68 

Ala.  48.     p.  405. 
Newsom  v.  Davis,  20  Tes.  425.     p. 

69. 
Newton  v.  Caberry,  5    Cranch  C.  C 

632.    p.  304. 
Newton  v.  Cocke,   10  Ark.   169.    p. 

379. 
Niantic  Bank  v.  Dennis,  37  111.  381. 

p.  57. 
Nickerson  v.   Einger,  76   N.   Y.  279. 

p.  77. 
Nichol  V.   Crittenden,   65    Ga.    497. 

pp.  120,  262. 
Nicholas  v.  Lansdale,  Litt.  Sel.  Cas. 

21.    p.  256. 
Nichols  V.  Alsop,   10  Conn.  263.    p. 

98. 
Nicols  V.  Scott,  12  Yt.  47.     p.  351. 
Nichols  V.  Woodruff,  8  Blackf.  439. 

p.  35. 
Nichols  V.  McCall,  13  La.  Ann.  215. 

p.  54. 
Nixon  V.   Palmer,  10  Barb.  175.     p. 

173. 
Nolley  V.  Callaway  County  Ct.,  11  Mo. 

447.    p.  54. 
Norden's  Case,  Post.  129.    p.  544. 
Norris    v.  Harris,   15    Cal.    226.    p. 

3G6. 
Norris,  Ee,  1  Sw.  &  Tr.  6.     p.  232. 
Northrup  v.  Trask,  39  Wis.  515.    p. 

69. 
North  Eiver  Meadow  Co.  v.   Slirews- 

bury   Church,  22  N.J.  L.  427.    p. 

382. 
Nosier  V.  Haynes,  2  Ncv.  53.    p.  36. 
Noxon  V.  De  Wolf,  10  Gray,  343.     p. 

78. 
Nutting  V.  Herbert,  37  N.  H.  350.    p. 

84. 


TABLE    OF   CASES   CITED. 


Ixvii 


0. 
Oaks  V.  Harrison,  24  Town,  1 70.     p.  93. 
01)art  V.  Letson,  17  N.  J.  (L.)  78.     p. 

SH. 
O'Brien  v.  Henry,  6  Ala.  787.     p.  419. 
O'Brien  v.  Norris,  V>  2>[d.  122.     p.  00. 
O'Connell  v.   People,  87  N.  Y.  380- 

p.  -IJO. 
O'Gara  v.  Eisenlohr,  38  N.  Y.   29G. 

pp.  102,  550. 
Ogilen  V.  Saunders,   12  "Wheat.  213. 

p.  503. 
O'ilara  v.  Blood,  27  La.  Ann.  57.    p. 

54. 
Oiler  V.  Gard,  23  Ind.  212.     p.  5. 
Olden  V.  Hubbard,  34  N.  J.  (Eq.)  85. 

p.  308. 
Oldliam  V.  Wolley,  8  B.  *fc  C.  22.     p. 

107. 
Oldnall  V.  Deakin,  3  C.  &  P.  404.     p. 

107. 
Ogletrco  V.  State,    28   Ala.  003.     p. 

447. 
Oliver  V.    State,    17    Ala.   5S7.      p. 

473. 
O'Xeil  V.  N.  Y.,  etc.,  Mining  Co.,  3 

Nev.  111.     p,  105. 
Onesti  V.  Freeloii,  01  Cal.  02-5.     p.  34. 
Ononinney  v.  Slillwell,  23  Beav.  328. 

p.  200. 
Oppeuheim  v.  Do  "Wolf,  3  Sandf.  Cb. 

571.    p.  224. 
Ortwein  v.  Com.,  70   Pa.  St.  423.     p. 

450. 
Orvis  V.  Newall,  17  Conn.  97.     p.  00. 
Osborn  v.  Allen,  26  N.  J.  (L.)  383. 

p.  215. 
Osborn  v.  U.  S.  Bank,  9  Wheat.  738. 

p.  50. 
Oswald  V.  Leigh,  1  T.  R.270.     p.  308. 
Outlaw  V.  Davis,  27   111.  407.     p.  34. 
Ovcrliill's  Trusts,  17  Jur.  342.    p.  30o. 
Ovorstreet  v.  State,  46  Ala.  SO.    p. 

403. 
Owen  V.  Boyle,  15  Me.  147;  32  Am. 
,    Dec.  143.    pp.  300,  370. 
Owen  V.  Flack,  2   Sim.  &  Stu.  GOG. 

p.  145. 
Owen  f.  State,  25  Ind.  371.     p.  34. 


P. 

Padgett  o.   Lawrence,   10  Paige,  170. 

p.  577. 
Pago  V.  Dennison,  1  Grant's  Cas.  370. 

p.  108. 
Pago  V.  Findley,  6  Tex.  301.     p.  170. 
Page  y.  Stephens,  23  Mich.   357.    p. 

122. 
Paine  v.  Dwinal,  53  Me.  53.     pp.  G54, 

355. 
Paine  v.  Erlsell,   10  Pa.  St.   178.     p. 

386. 
Paine  v.  Noelke,  43  N.  Y.  (S.  C.)  170. 

p.  358. 
Paine  v.  Tutwiler,  27  Gratt.  440.     p. 

55. 
Palmer©.  Baling,  8   Cal.   385    p.  53. 
Palmer  V.   Oakley,  2  Doug.  (Mich  ) ; 

47  Am.  Dec.  1.     pp.  27,  20. 
Palmyra  r.  Martin,  26  Mo.   503.     p. 

13. 
Paimell   v.  Com.,  86  Pa.  St.  268.    p. 

459. 
Park  V.  Harrison,  8  Humph.   413.     p. 

4-0. 
Parker  v.  Altschul,  GO   Cal.  3S0.     p. 

34. 
Parker  v.  Boston,  etc.,  E.  Co.,  3  Cush. 

107  ;  50  Am.  Dec.  700.     p.  34. 
Parker  v.  Foote,  19   "Wend.  309.    p. 

405. 
Parker  v.  Kane,  4  "Wis.  1.    p.  160. 
Parkin  v.  Moore,  7  C.   &   P.  408.     p. 

79. 
Parks   V.  Kichardson,  4  B.  Mon.  276. 

p.  124. 
Parnell  v.   Haahn,   61   Cal.   131.     p. 

34. 
Partenheiner  v.  "Van  Order,  20  Barb. 

470.     p.  140. 
Parsons  v.  Lloyd,    3   Wils.   341.    p. 

34. 
Patch's    Case,     London,     1803.      p. 

500. 
Patce  I'.  Pelton,  43  "V"t.   182.     pp.  98, 

440. 
Paton  V.  Coit,  5  Mich,  505.     p.  77. 
Patrick  v.   llallet,    1  Johns.  246.     p. 

102. 


Ixviii 


TABLE   OF   CASES    CITED. 


Patterson  y.  Black,  Park  on  las.  919 

p.  '224. 
Patterson  v.  Gaines,  6  How.  550.     p 

108. 
Patterson  v.  McCausland,  3  Bland  Ch 

90.     pp.  302,  555. 
Patterson  v.  State,  21  Ala.  571.     pp 

419,  585. 
Pattie   V.  ■^Vilson,  25   Kas.  326.     p 

308. 
Pattisonv.  Prior,  18  Ind.   440.     p.  7 
Patton  V.  Ast,  7  S.   &   K.   116.     p 

344. 
Pausch  V.  Guerrarad,  67  Ga.  319.    p 

54. 
Paxton    V.  Boyce,   1   Tox.    317.    p 

93. 
Paxton  V.  Rucker,   15  W.   Va.  547, 

p.  36. 
Payne  v.  Long,  19  Ves.  571.     p.  303 
Peacock  v.  Bell,   1  Sauad.   74.     pp 

28,  29. 
Pearce  v.  "Whale,  5  B.  &  C.  38.    p 

49. 
Peaslee  v.  Robbins  3  Mete.  164.    p 

70. 
Peaveyu.  Tilton,  18   N.   H.   151 ;  45 

Am.  Dec.  3G5.    p.  303. 
Peck,  Ee,  29  L.  J.  (P.  &  M.)  95.     p 

201. 
Pell  V.  Ball,  1   Cheeves   (Eq.)   S.  C 

99.    pp.  246,  247. 
Polton  V.  Palmer,  13  Ohio,  209.     p 

27. 
Pendrell  v.  Pendrell,  2  Strange,  925 

pp.  110,  118. 
Penn    v.   Edwards,    50    Ala.  63.    p 

347. 
Penn  v.  Myers,  Add.  320.     p.  518. 
Pennefather    v.    Pennefather,    Irish 

Pvcp.6  Eq.l71.     p.  192. 
Pennington  v.  Yell,  11  Ark.  236.     p. 

569. 
Pennsylvania  R,  Co.  v.  Brooks,  7  P.  P. 

Smith,  339.    p.  573. 
Penobscot  Boon  Co.  v.   Lamson,   16 

Me.  224.    p.  50. 
Pcnwarden  v.  Ching,  1  Moody  &  Mai. 

400.     p.  427. 


People  V.  Ah  Choy,  1  Idaho,  317.     p 

537. 
People  V.  Ak  Ki,  20  Cal.  172.    p.  518, 
Peoples.  Antonio    p.  518. 
People  V.  Barnes,    48  Cal.   551.    p 

483. 
People  V.  Bodine,  1  Den.  (N.  T.)  281 

p.  445. 
People  V.  Bowen,  49  Cal.  654.     p.  483 
People  V.  Breen,  4  Park.  C.  C.  380 

p.  499. 
People  V.    Calder,  30  Mich.  85.    p 

106. 
People    V.   Carrillo,   54   Cal.  03.     p 

5G3. 
People  V.  Chambers,  118  Cal."_382.    p 

518. 
People   V.  Coffman,  24  Cal.  233.     p 

459. 
People  V.  Cole,  84  El.  327.     p.  29. 
People  V.  Cook,  8  N.  Y.  6.    p.  47. 
People  V.  Corbin,  56  N.  Y.  363.     p, 

483. 
People  V.  Darr,  61  Cal.  538.    p.  38. 
People  V.  Davis,  1  Wheeler,  230.    p. 

279. 
People  V.  Dyle,  21  N.  Y.  578.     p.  551. 
People  V.  Pinney,  38   Mich.  482.    p, 

459. 
People  V.  Feilen,  58  Cal.  218.    p.  583, 
People  V.  Fuqua,  01  Cal.  377.     p.  34, 
People  V.  Garbutt,   17  Mich.  9.    p, 

459. 
People  V.  Garcia,  25  Cal.  531.    p.  37, 
People  V.  Gardner,  2  Wheel.  23.    p, 

541. 
People  V.  Gray,  72  El.  343.    p.  35. 
People  V.  Green,  1  Park.  C.   C.   32. 

p.  498. 
People  V.  Grunzig,  2  Edm.  Sel.   Cas. 

236.    p.  498. 
People  V.  Hall,  57  Cal.  569.    p.  38. 
People  V.  Ilendrickson,  1  Park.  C.  C' 

422.    pp.  4m,  499. 
People  V.  Hessing,  28  111.  410.    pp. 

35.  509. 
People  V.  How,   2  Wheel.  Cr.  Cas. 

223.    pp.  409,  511,  512. 
People  V.  Hurley,  00  Cal.  76.    p.  518. 


TABLE   OF   CASES    CITED. 


Ixix 


People  V.  Johnson,  01   Cul.   142.     p. 

44J. 
People  V.  Kelser,3  Wheel.  Cr.  Cas.  40. 

p.  498. 
People  V.  Lambert,  5  Mich.  35G.     p. 

870. 
People  V.  Lock  Wing,  61    Cal.  3S1. 

p.  537. 
People    ».  Manhattan    Co.  9  Wend, 

551.    p.  170. 
People  V.  March,  6  Cal.  543.     pp.  170 

200,  409. 
People  V.   Marion,  29   Mich.  31.     p 

143. 
People  V.  Mellon,  40  Cal.  648.    p.  88 
People  V.  Messersmith,  57   Cal.  575 

p.  459. 
People  V.  McDowell,  47  Cal.  131.    p 

459. 
People  V.    McLeod,  1  Hill,  407.    p, 

170. 
People  V.  McWhorter,  4  Barb.  438.    p 

551. 
People  V.  Orcutt,  1  Park.   C.  C.  252 

pp.  204,  408. 
People  ».  Peverelly,  Burr.  Ev.  347.    p 

609. 
People  V.  Phojnis  Bk.,  4  Bosw.  804 

p.  55. 
Pcviple  V.  Pitcher,  15  Mich.  397.     p 

538. 
People  V.  Preston,  1  Wheel.  41.     p 

518. 
People  V.  Rathbun,  21  Wend.  509.   pp 

538,  539. 
Peoplo  V.  Robinson,  1  Park.  C.  C.  649 

p.  493 
Peoplo  t).  Sing  Linn,  01  Cal.  538.    p 

89. 
Peoplo  V.  Smith,  59  Cal.  305.     p.  53 
People  V.    Smith,    57  Cal     130.     pp 

179,  459. 
People  V.  Snyder,  41  N.  Y.  307.    pp 

65,  84. 
People  V.  Squires,  49  Mich.  487.     p 

170. 
People  ».  Stanley,  47  Cal.  117.    p.  537 
Peop'o  V.  Stout,  4  PaTk.  71.     p.  500. 
People  V.  Strong,  40  Cal.  302.    p.  538, 


People  V.  Stuart,  4  Cal.  218.     p.  35 
Peoplo  V.  Thayer,  1  Park.  C.  C.  595, 

p.  433. 
People  V.  Townsend,  3  Hill,  481.    pp 

281,  292. 
People  V.  Tvler,  30  Cal.  622.     p.  552. 
People  V.    Walden,   51   Cal.  5t8.     p 

603. 
Peoplo  V.  Wilson,  40  Cal.  14.     p.  459 
People  V.  Wilson,  30  Mich.  480.     p, 

518. 
People  V.  Wang  Ah  Ngow,  54  Cal 

151.    p.  537. 
People  V.  Wood,  3  Park.  681.     p.  495 
People  V.  Woodside,  72  111.  407.    p 

88. 
People  V.  Wreden,  12  Ky.  682.    p.  459. 
Perkins  v.  Nugent,  45  Mich.  150.     p, 

54. 
Perkins  v.  Prout,  47  N.  H.  389.    p 

77. 
Perkins  v.  Scott,  57  N.  H.  55.     p.  568 
Porrlii  V.  Keaii,  19  Me.  355.    p.  354. 
Perrin  v.  Noyes,  39  Mc.  384.    p.  77. 
Perry  County  v.  R.  Co.,  05  Ala.  391. 

p.  53. 
Peter  v.  Beverly,  10  Pet.   532.     pp. 

351,  355. 
Petorkin  v.  Inloes,  4  Md.    175.     pp. 

197,  239. 
Pettis  V.  Westlake,  3   Scam.  535.    p. 

78. 
Pful  V.  Vanbatenberg,  2  Camp.  439. 

p.  348. 
Phelps  V.  Conant,  SO  Vt.  277.    p.  183 
Phelps  V.  Cutler,  4  Gray,  1 37.     p.  420 
Phelps  V.  Hartwell,   1  Mass.  71.    p. 

280. 
Phelps  V.  Ratcliffe,  3  Bush,  331.    p. 

54. 
Phcne's  Trusts,  Re,  L.  R.  5  Ch.  App. 

139.    p.  201. 
Philadelphia    City    Pass.  R.   Co.  v. 

Iler.rice,  92  Pa.  St.  431.    p.  570. 
Phillips  V.  Allen,  2  Allen,  453.    pp. 

108,  113,118. 
Phillips  V.  Evans,  64  Mo.  17.     p.  248. 
Phillips  V.   !RIiirrison,  3   Bibb,  105;  G 

Am.  Dec.  638.    p.  321. 


l:i.x 


TABLE    OF    CASES    CITED. 


Phillipscn  v.  Hayter,  L.   E.  6  C.  P. 

88.    p.  280. 
Pickering  v.  Pickering,  6  N.  H.  124. 

p.  280. 
Pickering  v.  Stamford,  2  Yes.  jr.  583' 

p.  309. 
Pickett  V.  Pfickham,  L.  R.  4  Ch.  App. 

190.     p.  1C3. 
Picquet  v.  Swan,   5    Mason,   40.     p. 

45. 
Piel  V.  Brayer,  20  Ind.  332.    p.  58. 
Pierce  v.   Cloud,  G  Wright,  102.    p. 

407. 
Pierce  v.  Edington,  88  Ark.  150.    p. 

38. 
Pierce  v.  State,  53  Ga.  365.    p.  179. 
Pierpont  v.  Fowle,  2  Woodb.  &  M. 

23.    pp.  18,  74. 
Pierre  v.  Fernald,  2G   Me.  436.    pp. 

405,411. 
Pierson  v.  People,  18  Hun.   239.     p. 

498. 
Pike  V.  Hayes,  14  N.  H.  19.    p.  279. 
Pillow  V.   Roberts,  13  How.  472.    p. 

5G3. 
Piper  V.  Wade,  57  Ga.  223.     p.  353. 
Pipes  V.  Hurdesty,  19  La.  Ann.  152. 

p.  381. 
Pitcher  v.  Patrick,   1  St.   &  P.  478. 

p.  349. 
Pitney  v.  Leonard,  1  Paige    Ch.  461. 

p.  419. 
Pittsburg  V.  O'Neil,  1  Penn.  St.  343. 

pp.   17,  73. 
Pittsburg  V.  Walter,  69  Pa.  St.  365. 

p.  55. 
Pizzarro,  The,  2  Wheat.  241.    p.  151. 
Piatt  V.  Stewart,  10  Mich.  2(;0.     p.  GO. 
Plimpton  V.  Somerset,  33  Vt.  283.     p. 

567. 
Plowes  V.  Bossey,  31  L.  J.  (Ch.)  GSO. 

pp.  114,  118. 
Plummer  v.   Com,  1  Bush,  76.     pp. 

537,  539. 
Poe  V.  Darrah,  20  Ala.  289.    p.  164. 
Polk  V.  State,  19  Ind.  170.     p.  4:9. 
Polly,  The,  2  Eob.  Adm.  361.     p.  151. 
Pomeroy  v.  Ainsworth,  22  Barb.  118, 

p.  372. 


Pomeroy  ;;.   Benton,  77  Ivlo.  64,    p. 

148. 
Pomeroy  v.  Rice,  16  Pick.  22.    p.  354, 
Pool  V.  Morris,  29  Ga,  395,     p.  276, 
Poolcy  V.  Goodwin,  4  Ad,  &  Eil.  94. 

p.  82. 
Poorman  v.  Mills,  35  Cal.  118.     p.  78 
Pope  V.  Dodson,  58  111.  360.    p.  344. 
Pope  V.  Lynn,  50  Me.  83,     p.  364, 
Pordage  v.  Cole,   1   Sandf.   319,     p, 

538. 
Porter  v.  Campbell,  58  Tenn,  81.    p. 

179. 
Porter  v.  Parker,  8  Tex.  23.    p.  55, 
Porter  v.  State,  2  Ind,  435.    p,  537. 
Post  V.  Post,  70  111,  484.    pp.  93,  433 
Potez  V.  Glossop,  2   Ex,  192,     p,  89, 
Potter  V.  Litcomb,   7   Me.   302.     pp 

357,  582. 
Potts  V.  Coleman,  67  Ala.  221.    p, 

346, 
Pounders  v.  State,  37  Ark,  399,     p 

34. 
Powell  V.  Brinkley,  Busb.  (N.  C.)  154, 

p,  340. 
Powell  V.  Knox,  16  Ala.   634.     pp 

191,  585. 
Powell  V.  Sonnett,  3  Bing.  381.     p 

38. 
Powell  V.  Swan,  5  Dana,  1.    p.  349. 
Powers  V.  Russell,  13  Pick,  69.    p,  84, 
Praiher  v.  Palmer,  4  Ark.   456.    p, 

172. 
Pratt  V.  Lamson,  6  Allen,  457.    p,  54 
Prescottw.  Union  Ins.  Co.,  1  Whart, 

(Pa.)  399;  30  Am.   Dec.  206.    p 

102, 
Preston  v.  Leighton,  6   Md.   88.     p, 

142. 
Prevost  V.  Gratz,  6  Wheat,  481.    pp, 

99,  321,  441. 
Provost  V.  Gratz,  Pet.  C.  C.  361,     p 

386. 
Price  V.  Com.,   21    Gratt.   146.    pp 

518,524. 
Price  V.  Gover,  40  Md.  102,     pp.  99, 

440. 
Price    V.  Powell,  3  N.  T.  822.    p. 

420. 


TABLE    OF   CASES    CITED. 


Ixxi 


Price  V.  Tallman,  1   N.  J,  (L.)  417. 

p.  lo7. 
Primin  v.   Stewart,  7   Tex.  183.     p. 

200. 
Priiitiip  V.  Johnson,  19   Ga.   75.     p. 

84. 
Printiip  V.  Mitchell,  17  Ga.  5G4.     p. 

38;]. 
Prior  V.  State,  6  Tex.  (App.)  489.    p. 

55. 
Proctor  V.  McCall,  2  Bailey  (S.  C). 

134 ;  23  Am.  Dec.  134.     p.  200. 
Procurator-Gen.  v.   Colviu,  1  Uagg. 

Ecc.92.    p.  2n. 
Proprietors   v.  Bullard,  2  Mete.  303. 

p.  403. 
Prudential  Insurance  Co.  v.  Edmonds* 

2App.  Cas.  4S7.    p.  216. 
Puckelt  V.  State,    1   Sneed,   356.     p. 

200. 
Piillcn  V.  Hutchinson,  25  Me.  242.     p. 

89. 
Pullen  V.  Shaw,  3  Dev.  238.     p.  394. 
Pursley  v.  Uays,  17  Iowa,  310.     p.  36. 
Puryear  v.  Rose,  6  Cold.  21.     p.  179. 
Putnam  v.  Clark,  27  N.  J.  (Eq.)  412. 

p.  381. 

Q. 

Queen  v.  Evans,  2  Cox  C.  C.  270.     pp. 

523,  525. 
Queen  t;.  Mayor  Tewkesbury,  L.  R.  3 

Q.  C.  GJ9.     pp.  7,  4:.4. 
Queen  v.  Smith,  1  Cox  C.  C.  260.     p. 

279. 
Quincbaug  Bk.  i>.  Brewster,  30  Conn. 

559.    pp.  270., 

R. 

R.  V. ,  2  C.  &  P.  459.    p.  525. 

R.  V.  Adams,  3    C.  &  P.  600.     p.  525. 
R.  -w.  Alh'rton,  I  Ld.  Ray,  122.    pp. 

109,  110. 
R.  V.  Appleby,  3   Stark.  33.    p.  549. 
R.  V.  Archer,  1  Moody,  145.     pp.  279, 

288,  294. 
R.  V.  Atkinson,  1  Cr.  &  Dix.  161.     p. 

525. 
R.  V.  Bailey,  7  C.  &  P.  264.    p.  260. 


R.  V.  Barber,  4  Cox  C.  C.  272.     p.  294. 
R.  V.  Barbot,  18  How.  St.  Tr.  1261. 

p.  509. 
R.  V.  Bishop,  2  London  Leg.  Obs.  39. 

p.  495. 
R.  V.  Blandy,  18  How.  St.  Tr.  1118. 

p.  490,  499. 
R.  V.  Cloomsbury,  4  El.  &  B.  520.     p. 

29. 
R.  V.  Bowen,  13  Q.  B.  790,    p.  35. 
R.  V.  Budd,  5  Esp.  2S0    p.  175. 
R.  V.  Buncombe,  1  Cox  C.  C.  183.    p. 

289. 
R.  V.  Burdett,  4  B.  &  Aid.  161.    p.  556. 
R.  V.  Burdock,  Best  on  Pres.,  sect.  196. 

p.  496. 
R.  V.  Carlisle,  2  B.  &  Ad.  307.     p.  35. 
R.  V.  Carpenter,  2  Show.  47.     p.  427. 
R.    V.   Cleves,  4   Car.  &  P.  221.     pp. 

489,  505. 

R.  V,  Cole,  1  Phil.  Ev.  508.    p.  483. 
R.  V.  Connollj',   2  Lewin,   229.    pp. 

279,  288. 
R.  V.  Cooper,  3  C.  &  K.  318.     p.  525. 
R.  V.  Cooper,  1  Q.  B.  D.  19.     p.  487. 
R.   V.    Corders,    Phill.   Tr.    221.     p. 

509. 
R.   V.  Cotton,  12   Cox  C.  C.  400.     p. 

.490. 
R.  V.  Crowhurst,  1    C.  &  K.  370.    p. 

522. 
R.  V.  Cruise,  8  C.  &  P.  546.     p.  275. 
R.   V.   Cruise,   2   Moody  C.    C.    53 ; 

p.  294. 
R.  V.  Crutlenden,  6  Jur.  267.     p.  525. 
R.  V.  Dewhirst,  2  Stark.  Ev.  449.    p. 

525. 
R.  V.   Donellan,   Phil.   Tr.  126.  pp. 

530,  541. 
R.  V.  Donnall,  Wills'  Circ.  Ev.  1S8, 

p.  541. 
R.  V.  Dorsett,  2   C.  &  K.  306.     pp. 

490,  508. 

Rox  V.  Eldershaw,  14  Eng.  Com.  Law, 

336.    p.  286. 
R.  r.  Fanning,  R.  &  R.  207.     pp.  262, 

467. 
R.  V.  Francis,  L.  K  2  C.   C.  R.  125. 

p.  487. 


Ixxii 


TABLE   OF   CASES   CITED. 


R.  V.   Ganier,  3  Fost.  &  F.  681.     p. 

490. 
E.  V.  Gearing,  18  L.   J.,  M.   C.  215 ; 

pp.  490,  508. 
E.  V.  Gauche,  2  Salk.441.     p.  28. 
R  V.   Gray,  4  Fost.  &  F.  1102;    p. 

489,  508. 
E.  V.  Green,  7  How.  St.  Tr.  159.    p. 

543. 
E.  V.  Harrison,  12   How.   St.  Tr.  833. 

pp.  496,  512. 
E.  V.  Hay,  1  W.  Black.  G46.    p.  241. 
E.  V.  Heath,  Wills'  Ev.  98.     p.  515. 
E.  V.  Hewlett,  2  Euss.  on  Or.  728.    p. 

525. 
E.  V.  Hill,  2  Moody,  30.    pp.  264, 467. 
R.  V.  Hill,  20  How.  St.  Tr.  1317,    p. 

509. 
R.  7).  Howard,  1  Moo.  &  Rob.  187.    v. 

50. 
R.  V.  Hughes,   2    Lewin,  230.    pp. 

288,  294. 
R.  V.  Haling,  1  Strange,  7.     p.  28. 
E.  V.  Inhabitants  of  Mansfield,  1  Q. 

B.  444.    pp.  113,  115. 
R.  V.  Jones,  2  Camp.  181.    p.  47. 
E.  V.  Knight,  3  C.  &  P.  116.     pp.  279, 

290. 
E.  V.   Long  Buckly,  7  East,  45.    pp. 

35,  427. 
R.  V.  Luff,  8  East,  198.    p.  108. 
R.    V.   Mainwaring,    1    Dears.  &   B. 

132.    p.  437. 
R.  V.  Matthews,  1  Den.  C.  C.  549.    p. 

279. 
R.  V.  Mazagora,  R.  &  R.  291.    pp.  264, 

468. 
R.  V.  [MonkhousG,  4  Cox,  55.    p.  274. 
R.  V.  Slurray,  1  Sulk.  122.     p.  109. 
R.   V.  Nairn,   19   How.  St.  Tr.  1296. 

p.  498. 
R.  V.  Nash,   2  Den.  C.  C.  498.     pp. 

264,  467. 
R.  V.  Norkutt,  14  How.  St.  Tr.  1324. 

p.  543. 
R.  V.  Ogilvie,  19  How.  St.  Tr.  1290. 

pp.  511,  512,  534. 
R.  V.  Owen,  4  C.  «S5  P.  230.    p.  279, 

283. 


E.  V.  Owens,  2  E.  &  E.  86.    p.  90. 
E.   V.  Partridge,  7   C.  &  P.  551.    p. 

525. 
E.  V.   Patch,  Wills'  Circ.  Ev.  230    p. 

496. 
E.  V.  Pease,  3  B.  &  Aid.  579.    p.  260. 
R.   V.  Phillips,   34  Eng.  Com.  Law, 

763.    p.  286. 
E.«.Price,8C.&P.19.    pp.  279,  294. 
E.  V.  Eees,  6  C.  &  P.  606.     p.  50. 
E.  V.  Richardson,  Burr.  Cir.  Ev.  243. 

p.  505. 
E.  V.  Eichardson,  2  Fost.  &  F.  343 ; 

p.  489. 
E.  V.  Eodcn,  12  Cos  C.  C.  630.    p. 

490. 
R.  V.  Rogers,  2  Camp.  654.     p.  461. 
R.  V.  Rush,  Burr.  Ev.  4:^5.     p.  542. 
R.   V.  Sheppard,  E.  &  E.  160.     pp. 

264,  467. 
E.  V.  Smith,  1  Cox,  260.    p.  281. 
E.  V.  Smith,  2   C.   &  K.  203.     p.  522. 
E.  V.  Smith,  2  Dears.  &  B.  553.    p. 

287. 
E.  V.  Smith,  Ey.  &  M.  295.    p.  518. 
R.  V.  Smithers,"5  C.  &  P.  332,    p.  545, 
R.  V.  Squire,  Burns.  .Just.     p.  290. 
R.  V.  Stanfield,  11   How.  St.  Tr,  1402. 

pp.406,  511,533. 
R.  V.  Stapleton,  1   Cr.  &  D.  163.    p. 

288. 
R.  V.  Stewart,   19  How.  St.  Tr.  156. 

p.  534. 
R.  V.  Stone,  1  East,  639.     p.  465. 
R.  V.  Taylor,  5  Cox  C.  C.  1 38.    p.  490. 
R.  V.  Thurtell,  Pliill.  Tr.  7.    p  513. 
R.  V.  Totness,  11  Q.  B.  80,    pp.  28,  29. 
R,  V.  Verelst,  3  Camp.  432.     p.  50. 
E.  V.  Yoke,  Russ.   &    Ey.  531.    pp. 

490,  508. 
R.  V.  Waters,  1  Den.  C.  C.  356.    p. 

35. 
R.  V.  Wellshire,  6  Q.  B.  Div.  366.     p. 

201. 
R.  V.  Whiston,  4  Ad.  &  Ell.  607.    p. 

85. 
E.  V.  Whitney,  5  Ad.  &  Ell.  191.    p. 

35. 
R.  V.  Wright,  1  C  &  P.  116.    p.  289. 


TABLE   OF   CASES   CITED. 


Ixxiii 


R.  Co.  V.  Eamsay,  22  Wall.  322.    p. 

27. 
Raujland  v.  Morton,  41  Ala.  344.     p. 

320. 
Riiko  V.  neaton,  9  Wis.  838.     p.  370. 
Ramsay  v.  McCauley,  2  Tex.  190.    p. 

370. 
Ramsey  v.  McCue,  21  Gratt.  349.     p. 

881. 
Ramsbottom  v.  Buckhurst,  2  M.  &  S. 

6G7.     p.  35. 
Rnndall  v.  Bowden,  48  Me.  37.    p.  54. 
R;mger  v.  Gary,  1  :Metc   369.     p.  78. 
Rangier  v.  Morton,  4  Watts,  265.     p. 

8-54. 
Rankin  v.   Blackwell,  2  Johns.  Gas. 

198.    p.  381. 
Rawls  V.  Deans,  4  Ilawks,  299.    p.  55. 
Rawson  v.  Adams,  17  Johns.  130.    p. 

344. 
Ray  V.  Pierce,  84  N.  G.  485.    p.  303, 
Ray  V.  Rowley,  4Thomp.,  etc.,  43;  1 

Hun,  614.    "p.  41. 
Rayne  v.  Terrell,  33  La.  Ann.  812.     p. 

54. 
Eaynham  v.  Ganton,  3  Pick.  293.     p. 

360. 
Read  v.  Robinson,  6  W.  &  S.  329.    p. 

303. 
Rector  v.  Rector,  8  111.  120.    p.  138. 
Rector,  etc.,  of  Tnnity  Clmrch  w.Hig- 

gins,  4  Robt.  1.    p.  55. 
Redington  V.  Woods,  45  Cal.  406.    p. 

70. 
Redmond  v.  Anderson,  18  Ark.  449. 

p.  29. 
Reed  V.  Goodyear,  17  S.  &  R.  352.     p. 

400. 
Reed  V.  Jackson,  1  East,  355.     p.  35. 
Rood  V.  Kemp,  16  111.  445.     p.  381. 
Reed  y.  Pliillips  5  111.  48.     p.  35. 
Reed  V.  Reed,  46  Pa.  St.  239.     pp.  328, 

334. 
Reod  V.  State,  p.  35. 
Reed  v.  Vaughan,  15  Mo.  141.    p.  27. 
Reedy  v.  Scott.  23  Wall.  352 ,     p.  34. 
Reese  v.  Harris.  27  Ala.  801.    p.  300. 
Eee«e  v.  Miit.  Ben.  Ins.  Co.,  23  N.  Y. 

517.    p.  359. 


Reeves  v.  Brymer,  G  Vcs.  jr.  511.     p. 

309. 
Reeves  v.  Dougherty,  7  Yerg.  222.     p. 

93. 
Reformed  Protestant  Dutch  Church, 

Atl'y  Gen.  v.  83  Barb.  303.     p.  55. 
Reid  V.  Jordan,  66  Pa.  282.     p.  57. 
Reid  V.  Reid,  11  Tex.  385.    p.  55. 
Remington  v.  Levitt,  8  B.  Mon.  611. 

p.  108, 
Renfo  V.  Harrison,   10  Mo.  411.     p. 

304. 
Renner  v.  Bk.  of  Columbia,  9  Wheat. 

582.     pp.  17,  73. 
Respublica  v.  Bob,  4  Dall.  145.    p. 

612. 
Revel  V.  State,  26  Ga.  275.    p.  537. 
Reynolds  v.  Fleming,  30  Kas.  106.     p. 

60. 
Reynolds  v.  Nelson,  41  Miss.  83.     p. 

34. 
Reynolds  v.  Pharr,  9  Ala.  500.     p.  09. 
Reynolds  v.  Reynolds,  1  Dick.  374.    p. 

303. 
Rhodes  v.  Turner,  21  Ala.  210.     pp. 

320,  421,  424. 
Rhodes  v.  Whitehead,  27   Tex.   304. 

p.  403. 
Rhone  v.  Gnle,  12  IMinn.   54.     p.  163. 
Ricord  V.  Williams,  7  Wheat.  109.    p. 

414. 
Rice  V.  Cunningham,  29  Cal.  492.     p. 

40. 
Rice  V.  Lumley,  10  Ohio  St.  596.     p. 

200. 
Richards  v.  Ayers,  1  W.  &  S,  485,    p. 

306. 
Richards  v.  Elwell,  12  Wright,  61,    p. 

407. 
Richards  v.  Kountze,  4  Neb.  209.     p. 

93. 
Richards  v.  Richards,    15  East,    294. 

p.  197. 
Richardson  v.  Smith,  1  Allen,  541.    p, 

67. 
Ricliardson's  Estate,  13  Phila.  241,   p, 

805, 
Richmond  v.  Aiken,  25  Yt.  524,     p. 

669. 


Ixxiv 


TABLE    OF    CASES    CITED. 


Eickctson  v.  Richardson,  26  Cal.  149. 

p.  8:1. 
Riilgeley  v.  Johnson,  11  Barb.  540.    p. 

396. 
Eidgway,  Re,  4  Redf.  226.    p.  242. 
Rieuibauer's   Case,   3  Leg.  Obs.  242. 

pp.  oOj,  516. 
Eiggs  V.  Penn.  E.  Co.,  16  Fed.  Rep. 

804.    p.  148. 
Eiggs  V.  State,  30  Miss.  636.    pp.  26G, 

409. 
Eiggs  V.   Tayloe,  9  Wheat.  487.    p. 

159. 
Eindskoff  v.  Barrett,    14  Iowa,   101. 

pp.  17,  73. 
Ring  V.  Luffe,  8  East,  207.     p.  110. 
Ringhouse  v.  Keever,  49  111.  470.     p 

197. 
Ripley  V.  BabcocK,  13  "Wis.   425.    p 

179. 
Either  v.  The  Frolic,  1  Woods,  92.    p, 

353. 
Eising  Sun,  The,   2   Rob.   Adm.  104 

p.  151. 
Rist  V.  Hobson,  1    Sim.  &  Stu.   543 

p.  G7. 
Ritter  v.  Schenck,  101  111.   387.     pp 

85,  347. 
Rives  V.  Kumler,  27  111.  291.     p.  54. 
Rixford  v.  Miller,  49  Vt.  319.     p.  172. 
Eobbins  V.  Townsend,  20  Pick.  345. 

p.  350. 
Roberts  v.  Bethell,  12  C.  B.  779.     p. 

67. 
Roberts  v.  Brownrigg,  9  Ala.  106.     p. 

305. 
Roberts  v.  Cook,  68  Ga.  325.    p.  54. 
Roberts  v.  People,  19  Mich.  401.     pp. 

271,  274,  473. 
Eoberts  v.  Pillow,  1  Ilempst.  634.    p. 

82. 
E(;berts  v.  Swearingen,  8  Neb.  3G3. 

p.  419. 
Eoberts  v.  Wilcoxson,  36  Ark.  364.    p. 

68. 
Robeson  v.    Schuylkill    Nav.    Co.,  3 

Grant's  Cas.  190.    p.  355. 
Eobiiioe    V.    Doe,   6    Black.    85.     p. 

420. 


Robinson  v.  Allison,  36  Ala.  525.    p, 

344. 
Robinson  v.  Cushraan,  2  Denio,  149 

p.  75. 
Robinson  V.  Dauchey,  3  Barb.  20.     p 

358. 
Robinson  v.  Railroad,  7  Gray,  502.    p 

182. 
Robinson  v.  Reynolds,  2  Q.  B.  634.    p 

77. 
Robinson   v.  Sallier,  2  Woods  C.  C. 

187.     p.  241. 
Eochell  V.   Holmes,  2  Bay,  487.    p, 

403. 
Rockwell  V.  Taylor,  41   Conn.  55    p, 

344. 
Roden  u.Ryde,  4  Q.  B.  626.     pp.  2^3, 

255. 
Rodman  v.  Hoops,  1  Dall.  85.     p.  308, 
Roe  V.  Sup.  Ct.,  60  Cal.  93.    p.  34 
Rogers  v.  Bishop,  5  Blackf.   103    p, 

815. 

Rogers  v.  Hatch,  8  Nev.  35.     p.  370 
Rogers  v.  Morton,  12  Wend.  484.    p, 

77. 
Eogers  v.  Park,  4  Humph.  480.    p, 

50. 

Rogers  V.  Zook,  86  Ind.  237.    p.  358, 
Ronkendorff  «.  Taylor,  4  Pet,  349.     p 

49. 
Rood  V.  N.  Y.,  etc.,  E.  Co.,  18  Barb, 

80.    p.  69. 
Rooker  v.    Perkins,  1    Wis.    79.     p, 

403. 
Eose  V.  Clark,  8  Page,  573.  pp.  93, 435 
Rosenthal  v.  Mayhugh,  33  Ohio  St 

155.    p.  200. 
Eosenthal  v.  Eenick,  44  111.  202.     pp. 

34,  54. 
Eoscnweig  v.  People,    63   Barb.  034. 

p.  483. 
Ross  ^^  Clare,    3   Dana,  189.     p.  405. 
Ross  V.  Darby,  4  Munf.  428.  p.  3ii2. 
Ross  V.  Dunham,   35  Ala.  434.    pp. 

77,  79. 
Ross  V.  Ellsworth,  49  Me.  416.    p.  344. 
R(.S3  V.  Mizncr,  3  Blackf.  302.     p.  3'). 
Ross  V.  Mcjunkin,   14  S.  &  11. 364. 

p.  322. 


TABLE    OF    CASES    CITED. 


Ixxv 


Pv.-,s=or  V.  Bunn,  GG   Ala.  80.     p.  40'). 
llouiuii  V.  Bostwick,  59  Ala.  300.     p. 

C8. 
Roulledge     v.    Carruthers,   Nicholas 

Adult.  Bast.  IGl.    p.  100. 
Rowua  V.   Lamb,   4  Gr.  Greene,  468 

pp.  oG,  54. 
llowo  V.  Haslanci,  1  W.  Bl.  40i.     p 

201. 
Rowland  v.   Windley,  86   N.   C.  SG 

p.  o'jG. 
Riiboy  r.   Culbertson,  35  Iowa,  204 

p.  S47. 
Eu.i,'.'ly  V.  Gill,  15  La.  Ann.  500.     p 

20. 
Riit,'gles  V.  Bucknor,  1  Paine,  358.    p 

55. 
RiiL^les  V.  Lawson,  13  Johns.  285.     p, 

30]. 
RulotFw.  People,   40  K   Y.   213;  5 

Lans.  2G1.     pp.  197,  552. 
Rung  V.  Shonenberger,  2  Watts,  23 ; 

26  Am.  Dec.  95.     p.  415. 
Euiinion  v.  Crane,  4  Blackf.  450.     p. 

3S1. 
Rush  V.  Megee,  36  Ind.  69.    p.  179. 
RussoU   V.  Baptist  Theol.  Union,  73 

111.  307.    p.  03. 
Russell  V.  Beebe,  Hempst.  704.    p.  55. 
Russell  V.  Hallett,  23  Kus.  276.    p.  243. 
Russell  V.  Marks,   3   Mete.  (Ky.)  37. 

p.  87. 
Rust  V.  Baker,  8  Sim.  443,    p.  200. 
Rustird  V.  Gates,  4 Duna. 430.    p.  427. 
Ryan  v.  Sams,  12  Q.  B.  400.     p.  175. 
Ryan,  Ex  parte,  44  Cal.  555.     p.  400. 
Ryder  v.   Hathaway,  21    Pick.   298. 

pp.  149,  404. 

S. 

Sadler  v.  Anderson,  17  Tex.  248.     pp. 

55,  82,  370. 
Sadler  v.  Langham,  34   Ala.  311.     p. 

58. 
Sadler  r.  Kennedy,  11  W.  Ta.   187. 

pp.  322,  323. 
Sahuuler  v.   Lockwood,  G6  Ind.   285. 

p.  35. 


Salter  v.  Applegate,   23  N.    J.  (L.) 

115.     p.  47. 
Saltern  v.  Melhursh,  Arab.   348.     p. 

152. 
Sandilands,  In  re,  L.  Pw.  6  C.  P.  411. 

p.  83. 
Sanford  v.  Sandford,   28  Conn.  6.    p. 

34. 
San~ara  v.  Ramsaj',   2  Vcrn.  561.     p. 

145. 
Satterthwaite  v.  Powell,-  1    Curt.  705. 

p.  242. 
Saum  V.  Jones  Co.,  1  G.  Greene,  165. 

p.  36. 
Saunders  v.  Gilmer,  8  Tex.  295.     p. 

55.' 
Saunders  v.  Spingsteiu,  4  "Wend.  429. 

p.  164. 
Savage   v.  O'Neil,   42  Barb.  374.    p. 

366. 
Savage  v.  O'Neil,  44  N.  Y.  208.    p. 

366. 
Savier  v.  Chipman,  1  Mich.  116.     pp. 

94,  436. 
Saxon  V.  Whitaker,  30  Ala.  237.    p. 

179. 
Sayles  v.  Olrastead,  66  Barb.  590.    p. 

351. 
Sayro  v.-  Reynolds,   5.   N.,  J.   L.  737. 

p.  394. 
Sayres   v.  Com.,  SS  Pa.  St.  301.    p. 

459. 
Scales  V.  Key,  11  Ad.  &  Ell.  819.     p. 

107. 
Scammon  v.  Scammon,  28  N.  n.  419. 

p.  55. 
Schcel   V.    Eidman,   77  111.   304.    p. 

197. 
Schemmelpeuich  v.  Bayard,   4  Pet. 

264.    p.  354. 
Schermerhorn  v.   Talman,  14  N.  Y. 

93.     p.  56. 
Schnell  v.  Toomer,  56  Ga.    108.     p. 

13.5. 
Scholes  V.   Hitton,    10  M.   &  W.  15. 

pp.  102,  276. 
Scholey  r.  Walsky,  Peake,  25.   p.  348. 
SLhoncmanr.  Fegley,  14  Pa.  St.  G7G. 

p.  184. 


Ixxvi 


TABLE    OF    CASES    CITED. 


Schulter  v.  Merchants'  MuL  Ins,  Co., 

C2  Mo.  239.    p.  439. 
Scliurman  v.  Marley,   29    Ind.   459. 

p.  358. 
Bcott  V.  Coxe,  20  Ala.   294.     p.  182. 
Scott  V.  AVhite,  71  111.  287.    p.  35. 
Scott  V.  Williamson,  24  Me.  843.    p. 

77. 
Scott,  In  Ee,  1  Redf.  (N.  Y.)  — .    p. 

74. 
Scovill  V.  Baldwin,  27  Conn.  817.    pp. 

23,  135. 
Scruggs  V.  Bobb,  33  Ala.  481.     p.  345. 
Scutton   V.  Patullo,  L.  R.  19  Eq.  375. 

p.  241. 
Seaborn  v.  Henry,   30  Ark.  469.    p. 

858. 
Searlo  v.  Barrington,  Str.   813.      p. 

314. 
Sears  v.  Dixon,   33  Cal.   326.     p.  35. 
Seeds  v.  Kahler,  76  Pa.   St.  263.     p. 

60. 
Seechrist  v.  Baskin,   7  "W.  &  S.  403 ; 

42  Am.  Dec.  424.    p.  34. 
Seogie  v.  Thomas,  3  Blatchf,  111.     p. 

34. 
Seibright  v.  State,  2  W.  Va.  591.     p. 

465. 
Selleck  v.  'Booth,  1  Law.  &  Call.  C. 

0.  117.    p.  241. 
Sellickjj.  Starr,  5  Vt.  255.    p.  403. 
Selma  &  R.  Co.   v.  Lacy,  43  Ga.  461 

p.  358. 
Selwyn,   Re,   3  Hagg.   Ecc.  748.    p 

241. 
Senser  v.    Bower,  1   Penn.   450.     p 

108. 
Sever  v.  Russell,  4  Cash.  513  ;  50  Am 

Dec.  811.     p.  34. 
Sewell    V.  Evans,  4  Q.   B.  626.    p, 

253. 
Sewell  V.    Smith,    54  Ga.    507.     p. 

804. 
Seymour  v.  Sturgess,  26  N.  Y.  135 

p.  370. 
Sharp  V.  Johnson,   22  Ark.  79.    pp 

448,  5S3. 
Sharp  V.   Sharp,  35    Ala.  574.      p, 

859. 


Shaeferi).  Gates,  2  B.  Mon.  453;  38 

Am.  Dec.  164.    p.  34. 
Shaffner  v.   Com.,  72  Pa.  St.  60.     p. 

483. 
Shallcross  v.    Palmer,   15  Jur.   836. 

p.  387. 
Shands  v.    Howell,    28   Ga.  222.     p. 

35. 
Shattuck  V.  People,    5  111.  478.     p. 

35. 
Shearer  v.   State,  7  Blackf.  99.      p. 

465. 
Sheehan  v.  Davis,   17  Ohio   St.  571. 

p.  86. 
Shells    V.    West,    17    Cal.    324.    p. 

143. 
Sheldon  v.  Clark,  1   Johns,  513.    p. 

405. 
Sheldon  v.  Ferris,  45  Barb.  128.     p. 

235. 
Sheldon  v.  Wright,   7  Barb.  39.    p. 

43. 
Shelbyville  Trustees  v.  Town  of  Shel- 
by ville,   1  Mete.  (Ky.)  54.    p.  47. 
Shepherd  v.  Com.,  6   Binney,  283  p. 

115. 
Sherrill  v.   Hopkins,  1    Cow.   103.  p. 

5. 
Shields  v.  Pringle,  2  Bibb,  387.    pp. 

333,  336,  342. 
Shinkle  v.  First  Nat.  Bk.,  22  Ohio  St. 

517.    p.  344. 
Shorey  v.    Hussey,  82  Me.    579.    p. 

54. 
Shortwell  v.  Murray,  1    Johns.  Ch. 

512.     p.  6. 
Shouse  V.  Lawrence,  51  Ala.  500.     p. 

34. 
Shove  V.  Wiley,  18  Pick.  558.     pp. 

185,  186. 
Shropshire  v.   Glasscock,  4  Mo.  530, 

p.  369. 
Sins  V.  Badger,  6  N.  H.  393.     p.  54. 
Sibbering  v.  Earl  of  Burcarras,  8  De 

G.  &  Sm.  735.    p.  72. 
Sibley  v.  Fisher,  7  Ad.  &  El.  444.     p. 
388 
Siehel  v.   Lambert,  15  C.  B.  (n.  s.), 

782.    pp.  94,  lOG,  435. 


TABLE   OF   CASES   CITED. 


Ixxvii 


Sldnpy   V.    iSidney,  8  P.  Wins.  270. 

pp.102,  117,  270. 
Sid  well  V.  AVortbington,  8  Dana,  74. 

p.  34. 
Simmons  v.   Ttudall,    1  Sim.    (n.  s.) 

136.    p.  387. 
Simpson  V.  Davis,  119  Mass,  3G9.     p. 

399. 
Simpson  u.  Dismore,  9  M.   &  "W.  47. 

p.  250. 
Simpson  v.  Stackhouse,  9  Pa.  St.  186 ; 

49  Am.  Deo.  554.    p.  300. 
Simpson  v.  State,  4  Uumph.  450.    p. 

618. 
Sim    V.  Aiightery,  4  Strob.  Eq.  103. 

pp.  421,  424. 
Sims  V.  ytato,  68  Ga.  486.    p.  35. 
Simson  v.  Eckstein,  22  Cal.  580.    p. 

419. 
Sinclair  v.  Baggaley,  4  M.  «fc  W.  312. 

pp.  89,  90. 
Sistermans  v.  Field,  9  Gray,  332.     p. 

77. 
Slade  V.  Minor,  2  Cranch   C.  C.  139. 

36. 
Slater  v.  Henry,  5  Jones  (N.  C),  66- 

p.  443. 
Sleeper  v.  Van  Middlesworth,  4  De- 

nio,431.    p.  181. 
Slioer  v.  Bk.  of  Pittsburg,  16  How. 

671.  p.  43. 
Sloan  V.  Wliitaker,  58   Ga.  319.     p 

304. 
Slocum  V.  People,  90  111.  281.    pp 

451,  587. 
Smiley  v.  Fries,  104  111.  416.     p.   84, 
Smith  V.  Battens,  1  Moo.  &  R,  341 

p.  89. 
Smith  V.   Brame,  16  Q.   B.  244.     p, 

77. 

Smitlrr.  Clark,  12  Iowa  32.    p.  185, 
Smith  V.  Com.,  1  Duv.  (Ky.)  224.     p 

459, 
Smith  V.  Croom,  7Fla.  147.     pp.  246, 

247. 
Smith  V.  Gibbs,  44  N.   H.  335.     pp. 

18,  74. 
Smith  V.  Gould,   4  Moore  P.  C.  26, 

p.  379. 


Smith  V.  Hardy,  36  "Wis,  417.    163. 
Smith  V.  Henderson,  9  M.  &  W.  818. 

p.  251, 
Smilh    V.   Hill,    22    Barb.     G5G.     p. 

55. 
Smith  V.    Jordan,"*  13    Min.   2G4.     p. 

83. 
Smith  V.  Keating,  6  C.  B.  130.     p.  35. 
Smith  V.   Knowlton,  11    N.   U.  196. 

pp.  200,  231. 
Smith  V.  McGowan,  8  Barb.  406.     p, 

893. 
Smith  V.  N.  Y,  Cent,  R.  Co.,  43  Barb, 

225.     p.  166, 
Smith  V.  Peterson,   63   Ind.   243.     p, 

360, 
Smith  V.  Porter,  10  Gray,  66.    p,  89. 
Smith  V.  Smith,  4  Paige  Ch.  432.     p. 

176, 
Smith  V.  Smith,   5  N.   J.  (Eq.)  484- 

p.' 215. 
Smith  V.  Smith,  49  Ala.  15G.     p.  213. 
Smith  V.   Smith,   19   Gratt.   545.     p. 

370, 
Smith  V.  Sprague,  4  Vt.   43.    p.  34. 
Smith  V.  State,  47  Ala.  545.    p.  39. 
Smith  V.  State,  53  Ala,  486,     p.  39. 
Smith  V.  State,  8  Tex.  App.  38.     p. 

493. 
Smith   V.   State,   58  Miss.   867,    pp. 

36,  537. 
Smith  V.  Stewart,  5  Ind.  220.    p.  54. 
Smith  V.  U.  S.,  2  Wall.  232,     p.  381. 
Smith  V.   Williamson,    11    X.   J.   L. 

313.    p.  40. 
Smith  V.  Whitaker,  23  111.  307.     p. 

372, 
Smith  V.  Whiting,   12  Mass,  6,    pp, 

17,  73, 
Smith,  Re,  31   L.  J.  (P,  &  M.),    182. 

p.  238. 
Smilhpeter  v.  Ison,  4  Rich.  Law,  203. 

p.  427. 
Smoot  V.  Baldwin,  1  Mart.  (n.  s.)  528. 

p.  370, 
Smyth  V.   Jeffries,  5  Price,   258,     p. 

465, 
Smyth,  Re,  28  L,  J.  (P.  &  M.)  1.    p. 

T29. 


Ixxviii 


TABLE   OF   CASES    CITED. 


Sncthen  v.  Memphis  Ins.  Co.,  3  La. 
Ann.  474;  48  Am.   Dec.   4G2.    p. 
102. 
Sneathers  v.  State,  46  Ind.  447.    p. 

518. 
Snow   V.    Benton,    28    111.    305.    p. 

179. 
Snyder  v  Com.,  85  Pa.   St.  519.    p. 

484. 
Snyder  v.  Kiley,  6  Pa.   St.   164;  47 

Am.  Dec.  452.    p.  140. 
Society  for  Propagation  of  Gospel  v. 

Young,  2  N.  H.  510.    pp.  55,  403. 
Solomon's  Lodge  v.  Montenotin,  58 

Ga.  547.    p.  01. 
Somervail    v.  Gillies,  31    Wis.  152. 

pp.  347,  351. 
Somerville  v.  State,  6  Tex.  App.  433. 

p.  493. 
South,  etc.,  R.  Co.  V.  Morrow,  65  Ala. 

197.    p.  58. 
Sparhawk  v.  Bullard,  1  Mete.  95.     p. 

403. 
Sparks    v.   Pvawls,   17    Ala.  211.     p. 

404. 
Spawn  V.  Crummerford,  20  Tex.  210. 

p.  370. 
Spear  v.  Carter,  1  Mich.  19 ;  48  Am. 

Dee.  6S8.     p.  28. 
Spears  v.  Burton,   31   Miss.  554.    p. 

200. 
Spears  v.  State,  50   Ga.  252.    .p.  35. 
Speer  v.  Speer,  7  Ind.  178.     160. 
Spellsburg  v.  Burdett,  10  CI.  &  F.  840. 

p.  83. 
Spencer  v.  Roper,  13   Ired,  (L.)  333. 

p.  201. 
Sperry   v.   Spaulding,    45   Cal.   344. 

p.  77. 
Spiers  v.  Parker,  1   T.  Pv.   141.     pp. 

35,  405. 
Spieres  v.  Parker,    1  T.   R.  144.     p. 

405. 
Spooner's,  l^Irs.,  Case,  2   Chand.  Cr. 

Tr.  34.    pp.  512,  534. 
Sprague  v.  Duel,  1  Clarke  (N.  Y.)  90. 

p.  179. 
Sprague  v.  Litherberry,  4  McLean, 
412.    pp.  34,  80,  302. 


Sprigg  V.  Moale,  28  Md.  506.     pp. 

194,  197. 
Spring  Garden  Mut.  Ins.  Co.   v.   Ev- 
ans," 9  M(l.  1.     p.  138. 
Spurr  V.  Bartholomew,  2  Mete.  479. 

pp.  55. 
Spurr  V.  Trimble,  1  A.  K.  Marsh.  279. 

p.  213. 
Squier  v.  Stockton,  5  La.  Ann.  120. 

p.  420. 
St.  George  v.  St.  Margaret's,   1  Salk. 

123.    p.  117. 
St.   Louis  V.  State,   8    Neb.  405.    p. 

498. 
St.  Louis,  etc.,  R.  Co.  v.  Murphy,  38 

Ark.  456.    p.  34. 
St.  Louis,  etc.,  R.   Co.  v.  Wheelis, 

72  111.538.    p.  85. 
Stacey  v.  Graham,  3   Duer,  444.    p. 

420. 
Stahl  V.  Berger,  10  S.  &  R.  171.    p. 

886. 
Stall  V.  Fulton,  30  N.J.  (L.)  4C0.    p. 

84. 
Stall  V.  Meek,  70  Pa.  St.  181.     p.  280. 
Standish  v.  Flowers,  16  Wis.  110.    p. 

55. 
Stannard  v.   Smith,  40  Vt.   513.    p. 

55. 
Staples  V.   Wellington,   58  Me.  453. 

p.  179. 
Starr  v.  Peck,  1  Hill,  270.     p.  358. 
State  V.  Adams,   1  Hayw.  463.     pp. 

518,  530. 
State  V.  Alstead,  18  N.  H.  59.     p.  55. 
State  V.  Antonio,  2  Const.     776.     p. 

513. 
State  V.  Arnold,  18  Ired.  L.  184.    p. 
-  466. 

State  V.  Arthur,  23  la.  432.     p.  537. 
State  V.  Atkinson,  6  Jones,  65.     p.  465. 
State  V.  Atkinson,  24  Vt.  448.    p.  433. 
State  V.  Baber,  74  Mo.  292.    p.  459. 
State '  u.  Bartlett,   43  N.  H.  224.     p. 

459. 
State  V.  Bartlett,  55  Me.  200.    p.  552. 
State  V.  Beackner,  8  Blackf.  246.    p. 

35. 
State  V.  Bell,  29  Iowa,  316.    p.  274. 


TABLE    OF   CASES   CITED. 


Ixxix 


State  V.  Bennett,  3  Brev.  514.    p.  518. 
Slato  V.  BtTtraiid,  3  Oregon,  61.    pp. 

200,  409. 
State  V.  Boice,  1  Iloust.  Cr.  Cas.  355. 

p.  458. 
State  V.  noswcll,  63  Ala.  307.    p.  459. 
ytato  V.   Browsler,  7  Vt.  V12.    p.  518, 
State  ».  Brown,  64  Mo.  307.     pp.  449, 

5S5. 
State   I'.  Brown.  75  Mo.  317.    pp.  30, 

618. 
State  V.  Brown,  12  Minn.  538.    p.  36. 
State  V.  Brown,  1  Iloust.  Cr.  Cas.  539. 

p.  179. 
State  V.  Bruin,  34  Mo.  537.     pp.  479, 

518. 
State  V.  Bunker,  59  Me.  300.     p.  405. 
State  V.  Buriingamo,  15  Maine,  100. 

p.  209. 
State  V.  Butterfield,  75   Mo.  297.     p. 

518. 
State  V.  Cameron,  40  Vt.  555.    p.  552. 
State  V.  Carter,  6  Ind.  37.    p.  54. 
State  V.  Cass.dy,  12  Kas.  559.  p.  518. 
State  V.  Cicely,  13  S.  &  M.  206.     pp. 

630,  533. 
Stale  V.  Cleares,  59  Me.  300.    pp.  546, 

552. 
State  V.  Cobb,  64  Ala.  157.     p.  371. 
Slate  V.  Coleman,  27  La.  Ann.  091.     p. 

274. 
State  y.   Collins,  3  Dev.  117.     p.  551. 
State  V.  Cowcll,  12  Nev.  337.     p.  487. 
Slate  t).  Crank,  75  Mo.  406.    p.  518. 
State  V.  Crawford,   11  Kan.  32.     p. 

459. 
State  V.  Creson,  38  Mo.  372.     p.  479. 
State  V.  Cres3,  10  Iowa,  101.     p.  54. 
State  V.  Crockett,  82  N.  C.  600.    p. 

54o. 
State  V.  Crowell,  25  Me.  171.    p.  465. 
State  V.  Cruwley,  13  Ala.  172.    p.  492, 
State  V.  Cunningham,  28  Conn.  195. 

p.  564. 
State  V.  Danby,   1   Houst.  (Del.)  Cr. 

Cas.  175.     p.  458. 
Stater, Draper,  1  Houst.  Cr.  Cas.  531. 

p.  458. 
State  V.  Edwards,  60  Mo.  490.     p.  465. 


State  V.  Edwards,  13  S.  C.  30.    p.  545. 
State  V.  Erb,  74  Mo.  199.     p.  459. 
Slate  V.  Evans,  65  Mo.  574.     p.  473. 
State  V.  Evans,  5  Jones,  250.     p.  401. 
Slato  V.  Parish,  23  Miss.  483.     pp.  29, 

34. 
State  V.  Folter,  32  la.  40.     p.  459. 
State  V.  Eloyd,  15  Mo.  854.     p.  479. 
Stater.   Flye,   26   Me.   312.     p.  445. 
Stale  V.  Foster,  61  Mu.  549.     pp.  271, 

473. 
State  V.  Foster,  23  N.  H.  348.    p.  20. 
Slate  V.  Fugate,  27  Mo.  535.     p.  4:;3. 
State  u.  Gassert,  05  Mo.  352.     p.  473. 
Slato  V.  Gibson,  21  Ark.  110.     pp.  34. 

37. 
State  V.  Gillis,  4  Dev.   (L.)  007.     p. 

531. 
State  D.  Gain,  9  Humph.  (Tenn.)  175. 

p.  439. 
State  V.  Graves,  72  N.  C.  382.     p.  479, 

518. 
State  V.  Gray,  37  Mo.  463.    pp.   479, 

518.  , 

Stale  V.  Green,  35  Conn.  203.     p,  400. 
Slate  V.  Hamilton,  55   Mo,   523.     p. 

548. 
Slate  V.  Harden,  US.  C.  300.     p.  55. 
State  V.  Hatcher,   11  Rich,  (L.)   525. 

p.  55. 
State  V.  Heaton,  77  N.  C,  504,     p,  205, 

468. 
State  V.Herman,  13  Ired.   (L.)  502. 

p.  108. 
State  V.  Hessenkamp,   17  Iowa,  25. 

"p.  202. 
State  V.  Hill,  2  Specrs,  150,    p.  47. 
State  V.  Hinchman,  27   Pa.   St.  479. 

p.  43. 
State  V.  Hodge,  50  N.  H.  510.     p.  518. 
State  V.  Holme,  54  Mo.  153.    pp.  206, 

409. 
State  V.  Howard,  82  N.   C.  627.    p. 

606. 
State  V.  Huting,  21  Mo.  464.    p.  459. 
State  V.  Hurley,  54  Me.  562.     p.  561. 
State  V.  Johnson,  40   Conn.   136.    p. 

179. 
State  V.  Jones,  50  N.  H.  309.    p.  459. 


Ixxx 


TABLE   OF    CASES    CITED. 


Stnte  V.  Koan,  10  N.  H.  347.  p.  106. 
State  V.  Kompf,  20  Mo. 429.  p.  439. 
State  V.  Kolsoe,  70  JIo.  506.  p.  252. 
State  V.  Xiimian,  7  Eich.   (L.)  497. 

p.  525. 
State  V.  Klinger,  43  Mo.  127.     p.  459, 
State  V.  Kiiapp,  45  N.  II.  148.     p.  543. 
State  V.  Laiiion,   3  Hawks,   175.    p. 

55. 
State  V.  Lane,  64  Mo.  319.    p.  271, 

473. 
State  V.  Lapage,  57  N.  H.  300.     pp. 

482,  483,  490. 
State  V.  Lawrence,  57  Me.   574.    p. 

459,  552. 
State  V.  Lawson,  14  Ark.  114.     p.  50. 
State  V.  Lewis,  22  N,  J.  (L.)  564.     p. 

27. 
State  V.  Mallon,  75  Mo.  356.    pp.  538, 

539. 
State  V.  Marler,  2  Ala.  43.    p.  459. 
State  V.  Marvin,  35  N.  H.  22.     p.  492 
State  V.  Maxwell,  42  Iowa,  208.    p 

274, 
State  V.  Merrick,  19  Me.  398.    p.  518 
State  V.  Millian,  3  Nev.  409.    p.  516 
State  V.  Miller,  7  Ired.  275.     p.  461. 
State  V.  ]Mitcbell,  64  Mo.  191.    pp 

271,  473. 
State  V.  Moore,  11  Ired.  (L.)  100.    p 

201. 
State  V.  Moore,  61   Mo.  279.     p.  248 
State  V.  Morris,  84  N.  C.  750.    p.  500 
State  V.  Jlorrison,  3  Nev.  299.    pp 

461,  465. 
State  V.  Marier,  25  Conn.  40.  p.  4S3 
State  V.  Mulhall,  72  Mo.  522.  p.  360 
State  V.  McBride,  19  Mo.  239.  p.  439, 
State  V.  Ncagle,  65  We.  408.  p.  487 
State  V.  Nichols,  38  Ark.  550.  p.  34 
State  V.  O'Neal,  7  Ired.  (L.)  251.     p 

651. 
State  V.  Patterson,  2   Ired.  (L.)  350 

p.  176. 
Stale  V.  Patza,  3  La.  Ann.  512.    p 

489. 
State  V.  Payne,  86  N.  C.  309. 
State  V.  People,  56  N.  Y.  315.     p 

552. 


State  .V.  Perkins,  24  N.  J.  (L.)  409. 

p.  47. 
State  V.  Pettaway,  3  Hawks,  623.    pp. 

116,  118. 
State  V.  Phillips,  24  Mo.  485.     p.  538 
State  V.  Pike,  49  N.  H.  399.     p.  280. 
State  V.  Pitts,  11  Iowa,  343.     p.  36. 
State  V.  Pratt,  1   Houst.  (Del.)   Cr. 

Cas.  269.    p.  458. 
State  V.  Presnell,  12  Ired.  (L.)   105 

p.  262. 
State  V.  Pugh,  7  Jones,  61.    p.  287. 
State  V.  Keaton,   15  N.  H.  174.     p. 

483. 
State  V.  Eedemier,  71  Mo.  173,    p. 

459. 
State  V.  Eeed,  62  Mo.  130.    pp.  512, 

545. 
State  V.  Bobbins,  65  Mo.  443.     p.  479, 
State  V.  Koberts,  52  N.  H.  492.     p.  49. 
State  V.  Robinson,  Burr,  Ev.  462.     pp. 

533,  534. 
State  V.  Robinson,  Burr.  Cir.  Ev.  288. 

p.  496. 
State  V.  Romaine,  58  Iowa,  46.    p. 

108, 
State  V.  Sam,  1  Winst.  300.    p.  285. 
State  V.  Sewell,  3  Jones  (L.)  245.     p. 

179. 
State  V.  Shaw,  4  Jones  (L.),  446.    p. 

525. 
State  V.  Sheelady,  8  Iowa,  477.    p.  36. 
State  V.  Shuford,  69  N.  C.  487.    p. 

484. 
State  V.  Simons,  17  N.  H.  83.    p.  551, 
State  V.  Smith,  53  Mo.  207,     p.  459. 
State  V.  Smith,  2  Ired.  (L.)  407,     p. 

518, 
State  V.  Smith,   2  Strobh.   77.    pp. 

267,  469. 
State  V.  Spencer,  31  N.  J,  (L,)  196. 

pp.  179,  458, 
State  V.  Stanley,  4  Nev,  71,     p,  36. 
State  V.  Steinmeyer,  64  Ind.  87.     p. 

35. 
State  V.  Thomas,  1  Houst.  Cr.  Cas. 

511.     p.  458. 
State  V.  Tibbets,  85  Me.  81.    pp.445, 

478. 


TABLE   OF   CASES    CITED. 


Ixxxi 


Stnte  V.  Trivals,  32  La.  Ann.  108C ; 

80  Am.  Rep.  293.    p.  274. 
Stnto  V.  Turner,   G5   N.  C.  593,     p. 

518. 
Stnto  V.  Turner,  Wright  (O.),  20.    p. 

473. 
State   V.  Twitty,  2  Hawks,  441.     p. 

370. 
State  V.  Upham,  38  Me.  361.    p.  551. 
State  V.  Vann,  82  N.  C.  631.     p.  179. 
State  V.   Vittum,   9  N.   H.*519;  pp. 

258,  577. 
State  V.  Wallace,  9  N.  H.  515.     p.  492. 
State  V.  Walters,  45  Iowa,  389.     pp. 

483,  487. 
State  V.  Watkins,  9   Conn.  47.     pp. 

460,  489,  498,  .500. 
State  V.  Weaver,  57   Iowa,   732.    p. 

549. 
State  V.  Welch,  73  Mo.  284.    p.  454. 
State  V.   Wells,  48  Iowa,   671.    pp. 

451,  587. 
Stale  V.  West,  1  Houst.  Cr.  Cas.  382. 

p.  490. 
State    V.  Weston,  9    Conn.  527.     p. 

518. 
State    V.  Whittier,  21    Me.  341.    p. 

465. 
State  I'.  Wikoff,  15  Mo.  174.    p.  518. 
State  V.  Williams,  54  Mo.  170.     pp. 

479,  518,  538. 
State  V.  Williams,  9  Ired.  (L.)  140. 

p.  518. 
State  V.  W-illiaras,  C5  N.  C.  305.    p. 

20.3. 
State  V.  Williamson,  57  Mo.  192.    p. 

40. 
State  V.  Willner,  40  Wis.  304.     p.  179. 
Slate   r.  Wilson,   10   Ired.  (L.)   131. 

p.  108. 
State  V.  Wolff,  15  Mo.  168.    p.  479. 
State   V.  Woodly,  2   Jones,  270.     p. 

461. 
State  V.  Worthinghara,  23  Minn.  528. 

p.  108. 
State  Auditor  v.  Jackson  County,  65 

Ala.  1 12  (1880).     p.  53. 
State  Bk.  v.  Se^ell,  18  Ala.  61G.    p. 
173. 


State  Nat.  Bk.  v.  Scofleld,  9  Neb.  499. 

p.  36. 
Stearns  v.  Stearns,  37  Vt.  678.     p.  37. 
Stebbing  v.  Spicer,  8  C.  B.  827.     p. 

258. 
Stfbbins    r.   Leowolf,    1    Cush.   137. 

pp.  101,  276. 
Stogall  i;.  Stegall,  2  Brock.  253.    pp. 

108,  115,  118. 
Stevens  v.  Bruce,  21  Tick.  193.     p.  73. 
Stevens  v.  Lynch,  12  East,  38.     p.  6. 
Stevens  v.  Martin,  18  Pa.  St.  101.    p. 

381. 
Stevens  w.  Moss,  2  Cowp. 594.     p.  US, 
Stevens   v.  McNamara,  36  Me.  17G. 

p.  200. 
Stevens  v.  People,  31  Ind.  485.    p. 

459. 
Stevens  v.  TaflFt,  3  Gray,  487.    p.  82. 
Stevens  v.  West,  6  Jones  (L.),  50.    p. 

259. 
Stevens  Hospital  v.  Dyas,  15  Ir.  Eq- 

(n.  s.)405.    p.  382. 
Stevenson  u.  Hoy,  43  Pa.  St.  191.    p- 

60. 
Stevenson  v.  Martin,  11   Bush,  458. 

p.  304. 
Stewart  r.  Preston,  1  Fla.  10;  44  Am. 

Dec.  621.    p.  140. 
Stewart's  Case,  19  How.  St.  Tr.  179. 

p.  499. 
Stewart's  Case,  2   C.  Hall  Rec.  187. 

p.  541. 
Stickworth,  Re,  7  Nev.  223.     p.  3G. 
Stinckfield  v.  Emerion,  52  Me.  4G5. 

pp.  197,  213. 
Stindo  V.  Goodrich,  3  Redf.  87.    p. 

242, 
Stockley  v.  Stockley,  1  V.  &  B.  23. 

p.  6. 
Stockton  V.  Johnson,  6  B.  Mon.  408. 

p.  322. 
Stoddard  v.  Chapin.    p.  567. 
Stoddard  v.  Burton,  41  Iowa,  582.    p, 

70. 
Stokes  V.  Macken,  62  Barb.  117.    p. 

176. 
Stouvenel  v.  Stephens,  2  Daly,  323. 
p.  222. 


Ixxxii 


TABLE    OF    CASES    CITED. 


Stodder  v.  Powell,  1  Slow.  1S7;     p. 

427. 
Stokes  V.  Macken,  62  Barb.  149.     p, 

358. 
Stokes  V.  State,  58  Miss.  677.     p.  518. 
Stono  V.  GcYser  Min.    Co.,  52   Cal. 

517.    p.  5G3. 
Stone  V.  State,  4  Hemp.  27.    p.  48G. 
Stoner  v.  Ellis,  6  lud.  159.    pp.  394, 

395. 
Story  V.  State,  16  Fla.  564.     p.  35. 
Storrs  V.  Baker,  6  Johns.  Ch.  1G6.     p. 

8. 
Stout  V.  Levari,  3  Pa.  St.  236,     p.  333. 
Strang,  Ex  parte,  21  Ohio  St.  610.    p. 

47. 
Strangwayes'  Case,  5  Leg.  Obs.  90. 

pp.  493,  510. 
Strickler  v.  Todd,  10  S.  &  R.  63 ;  13 

Am.  Dec.  649.    p.  404. 
Strimpler  v.  Koberts,  18  Pa.  St.  299. 

p.  412. 
Strode  v.  Magowan,  2  Bush,  627.     p. 

107. 
Strong  V.  Hirst,  61  Me.  9.     p.  353. 
Strong  V.  Strong,   1   Abb.  Pr.   (n.  s.) 

238.    pp.  188,  579. 
Btrother  v.  Lucas,  12  Pet.  410.     p.  55 
Stroud  V.  Casey,  27  Pa.  St.  471.     p 

69. 
Stubbs  V.  Houston,  33  Ala.  565.     p 

280. 
Stubbs  V.  Leavitt,  30  Ala.  352.     p.  56 
Sullivan  v.  Goldman,  19  La.  Ann.  12 

p.  163. 
Sullivan   v.  Kelly,  3   Allen,  148.     p 

118. 
Sullivan  v.  People,  31  Mich.   1.     p 

549. 
Sumner  v.  Cook,  15  Kas.  162.     pp 

34,  39. 
Supervisors  v.  People,  25  111.  183.    p 

68. 
Supervisors  of  Haughton  Co.  v.  TXces, 

34  Mich.  481.    p.  54. 
Supervisors  of  Livingston  v.  White, 

80  Barb.  72.    p.  55. 
Sutphen  V.  Cuslnnan,  35  111.  187.     pp. 

102,  276,  347,  556. 


Sutton  V.  Davenport,  27  L.  J.  (C.  P.) 

54!     p.  147. 
Sutton   V.  Johnson,  62  111.  209.     p. 

484. 
Sutton  V.  Tatham,  10  Ad.  &  Ell.  27. 

pp.  16,  73. 
Swails  V.  State,  4  Ind.  517.     p.  47. 
Swain  V.  Chase,  12  Cal.  283.     pp.  28, 

29. 
Swain  v.  Ettling,  32  Pa.  St.  486.    p. 

351. 
Swiiini^cott  Mac.  Co.  v.  "Walker,  22  N. 

H.  457.    p.  182. 
Sweeting  v.  Pov/ler,  1  Stark.  106.     p. 

258. 
Swift  V.  Swift,  46  Cal.  267.     p.  68, 
Sylvester  v.  State,  71  Ala.  25.     p.  537. 
Symington  v.  McLin,  4.  Dev.  &  B. 

'291.    p.  ISO. 

T. 

Taantje's  Case,  Phil.  Circ.  Ev.  xxxviii. 

p.  507. 
Tabb  V.  Collier,  68  Ga.  641,     p.  35. 
Tkblo  Mt.   ]\lin.  Co.  v.  AVallor's  De- 
feat Min.  Co,,  4  Neb.  220.    p.  177 
Tag-art    v.  Muse,  60  Miss.  870.     p 

36. 
Talbot  V.  Hodson,  7  Taunt.  251.     p, 

83. 
Talcot  V.  Com,  Ins.  Co.,  2  Johns.  129. 

p.  102. 

Tally  V,  Reynolds,  1  Ark.  99.     p.  50, 
Tam  V.  Shaw,  10  Ind.  469.      p.  35. 
Tanner  v.  Hughes,  53  Pa.  St.  289.     p, 

560. 
Tiilman    v.  Strader,   23   111.  493.     p 

3G9. 
Tatum  V.  Catamore,  16  Q.  B.  745.    p, 

382,  387. 
Taylor  v.  Cook,  8  Price,  653.    p.  54 
Taylor  v.  Cresswell,  45  Md.  422.     pp 

179,  190,  580. 
Taylor  v.  Crowninshield,  5  N.  Y.  Leg, 

Obs.  209.     p.  386 
Taylor  v.  Diplock,  1  Phill.  261.     p, 

2n. 

Taylor  V.  Dougherty,  1  W.  &  S.  327, 
p.  407. 


TABLE    OF   CASES    CITED. 


Ixxxiii 


Taylor  v.  Dugger,  GO    Ala.  431.     p. 

808, 
Taylor  v.  Moeely,  G  C.  &  P.  273.     p. 

387.  r 

Taylor  v.  Watkins,  2G  Tex.  688.     p. 

403. 
TLCuraseh  Town  Site  Case,  3  Neb. 

284.     p.  54. 
Tedder  v.  Stiles,  IG  Ga.  2.     p.  140. 
Temploton   v.  Morgan,   16  La.  Ann. 

438.     p.  54. 
Templcton  v.  People,  27  Mich.  501. 

pp.  439.  498. 
Tcrritt  V.  Woodruff,  19  Vt.   182.     p. 

370. 
Terry  v.  Bleight,  3  T.  B.  Mon.  270; 

16  Am.  Dec.  101  (1820).     p.  53. 
Tharp  v.  Conn.,  3  Mete.  (Ky.)  411.    p. 

34. 
Thatcher  v.  Dinsmore,  5  Mass.  299. 

p.  354. 
Thatcher  v.   Powell,   6  Wheat.  127. 

p.  27. 
Thiiyer  v.  Barney,   12  Min.  513.     p, 

83. 
Thayer  v.   Marsh,   11  Hun,   501.     p. 

83. 
Thayer  v.  Middlesex  ^lutual  Fire  Ins. 

Co.,  10  Pick.  329.     p.  ICO. 
Thayer  u.  Thayer,  101  Mass.  113.     p. 

492. 
Todcmcier  v.  Aspinwall,  43  111.  401. 

p.  54. 
Thomas  v.  Beckman,   1  B.  Mon.  34. 

p.  370. 
Thomas  v.  Hunnicutt,  54  Ga.  337.     p. 

342. 
Thomas  v.  Newton,  2  C.  &  P.  606.    p. 

77. 
Thomas  v.  Thomas,  2  Dr.  &  Sm.  298. 

p.  201. 
Thomas  v.  Visitors  of  Frederick  Co. 

School,  7  Gill  &  J.  385.     p.  197. 
Thompson  v.  Armstrong,  7  Ala.  256. 

p.  77. 
Thompson  v.  Carr,  5  N.  11.  510.     p. 

403. 
Thompson  v.  Davitte,  59  Ga.  472.     p. 

120. 


Thompson  v.  Konyon,  100  Mass.  103. 

p.  564. 
Thompson  v.  Ketcham,  8  Johns.  190. 

p.  368, 
Thompson  v.  Mashiter,   1  Bing.  283. 

p.  880. 
Thompson  v.  Morrow,  2  Cal.  99.     p. 

359. 
Thompson  v.  People,  4  Neb.  528.    p. 

518. 
Thompson  v.  Leach,  2   Salk.  618.     p. 

303. 
Thompson  v.  Shannon,  9  Texas,  536. 

p.  120. 
Thompson  v.  State,  6  Neb.  102.     p. 

518. 
Thompson  v.  Thompson,  9  Ind.  323. 

p.  156. 
Thorne  v.  San  Francisco,  4  Cal.  169. 

p.  303. 
Thornton   v.  Appleton,  29  Me.  300. 

p.  280. 
Thornton  v.  Campton,  18  N.  11.  27. 

p.  55. 
Thorpe  V.  Corwin,  20  N.  J.  (L.)  311. 

p.  327. 
Throgmorton  v.  Walton,  2  Rolle,  461. 

p.  196. 
Thrower  v.  Wood,  50  Ga.  459.    p. 

304. 
Thursb}'  v.  Myers,  57  Ga.  155.     p.  59. 
Thurston  v.  Percival,  1  Pick.  415.     p, 

359. 
Tibballs  v.  Jacobs,  31  Conn.  428.     p. 

303. 
Tibbs  V.  Allen,  27  lU.  119.     p.  34. 
Tilghman    v.  Fisher,  9   Watts,  441. 

p.  308. 
Tillic,  The,  7  Ben.  382.     p.  143. 
Tillou  V.  Clinton  Ins.  Co.,  7   Barb. 

568.     p.  390. 
Tilly  V.  Tilly,  2  Bland  Ch.  444.     p. 

200. 
Timson  v.  Moulton,  3  Cush.  269.     pp. 

102,  277,  463, 
Tindall's  Trust,  Re,  30  Beav,  151.     p. 

193, 
Tiiikham  v.  Arnold,  3  Me.  120.     p. 

403. 


Ixxxiv 


TABLE   OF   CASES   CITED. 


Tisdale   v.  Conn.  ISIut.  Ins.  Co.,  26 

Iowa,  170;  28  Id.  12.    p.  233. 
TijJiile  V.  Maxwell,  58  Ala.  40.     p. 

853. 
Tiilow  V.  Titlow,  54  Pa.  St.  216,    p. 

179. 
Titus  V.  Kimbro,  8  Tex.  210.    pp.  56, 

4G4. 
Tobin  V.  Shaw,  45  Me.  344.    p.  159. 
Todd  V.  Myers,  40  Cal.  355.    pp.  94, 

4.']  6. 
Toledo,  etc.,  Ins.  Co.  v.  Spears,  16 

Ind,  52.    pp.  17,  73. 
Tolmie  v.  Thompson,  3  Cranch  C.  C. 

123.    p.  31. 
Tomlin  v.  Howe,  1  Gilm.  8.     p.  344 
Tompert  v.  Lithgow,  1  Bush,  176.    p 

31. 
Tompkins  v.  Mann,  6  111.  (App.)  171 

p.  35. 
Topi  is  V.  Baker,  2  Cox  CI.  118.    p 

316. 
Towne  v.  Bossier,  19  La.  Ann.  162, 

p.  39. 
Townsend    v.  Downer,   32    Vt.  183 

p.  403. 
Towson  V.  Tickriell,  3  B.  &  Aid.  31 

p.  303. 
Trabue   v.  Sayre,   1   Bush,  131.     p 

186. 
Trask  v.  White,  3  Brown  Ch.  291.     p 

316. 
Treat  v.  Treat,  35  Conn.  200.    p.  304 
Trego  V.  Lowrig,  8  Meb.  238.    p.  68, 
Trenoulet   v.  Ccnas,  6  Mart.  (x.  s.) 

541 ;  17  Am.  Dec.  195.    p.  346. 
Trenton  Banking  Co.  v.  Woodruff,  2 

K  J.  (Eq.)  117.    p.  349. 
Trevor  v.  Trevor,  2  Myl.  &  K.  675. 

p.  303. 
Trimble  v.  Brichta,  10  La.  Ann.  778. 

p.  248. 
Tripe  v.  Marcy,  39  N.  H.  449.     p.  316. 
Troop  V.  Hatch,  3  Abb.  Pr.  27.     p. 

372. 
Trott  V.  Irish,  1  Allen,  49.     pp.  101, 

276. 
Trotter  v.  Harris,  2  Young  &  Jervis, 

285.    p.  427. 


Trotter  v.  St.  Louis  Public  Schools, 

6  Mo.  69.    p   54. 
True   V.  Sanborn,  27  N.  H.  383.    p. 

182. 
Trustees  v.  Hill,  12  Iowa,  402.    p.  77, 
Tryman  v.  Knowle,  13  C.  B.  222.    p 

124. 
Tucker  v.  Aiken,  7  N.  H.  113.     p.  49 
Tucker  v.  Morrill,  1  Allen,  528.    p, 

77. 
Tucker  v.  State,  57  Ga.  503.    p.  518 
Tunstall  v.  Parish  of  Madison,  30  La, 

Ann.  471.     p.  54. 
Turbeville  v.  State,  42  Ind.  490.     p, 

518. 
Turner  v.  Com.,  86  Pa.  St.  54.     pp 

488,  505. 
Turner  v.  Waterson,  4  W.  &.  S.  171 

p.  408. 
Twemlow  v.  Oswin,  2  Camp. '85.    p, 

228. 
Two  Brothers,  The,  1  Rob.  Adm.  131 

p.  151. 
Tyler  v.  Wilkinson,    p.  410. 
Tyler  Cotton  Press  Co.  v.  Chevelier, 

56  Ga.  494.    p.  35. 
Tyner   v.  State,  5  Humph.  383.    p. 

"^534. 

u. 

Ulrich  V.  McCabe,  1   Hilt.  251.    p. 

103. 
Underwood  v.  Hossack,  38  111.  208. 

p.  84. 
Underwood  v.  Wing,  4  De  G.,  M.  & 

G.  633.    pp.  242,  247. 
Unger  v.  State,  42  Miss.  642.     p.  518. 
Union  Bk.  v.  Middlebrook,  33  Conn. 

100.     p.  556. 
Union  Bk.  v.  Stone,  50  Me.  595.    p. 

186. 
Union  Canal  Co.  v.  Lloyd,  4  W.  &  S. 

?93.     p.  347. 
United   States   v.  Bowen,  4   Cranch 

C.  C.  604.    p.  274. 
Ujiitod  States  v.  Carberry,  2  Cranch 

C.  C.  358.    p.  55. 
United  States  v.  De  Coursey,  1  Pin- 

ney  (Wis.),  508.    p.  163. 


TABLE   OF   CASES   CITED. 


Ixxxv 


United  Stntes  v.  Douglass,  2  Blatcbf. 

(U.  S.)  207.    p.  447. 
Unilcd  States  v.  Earhart,  4  Sawj-.  245. 

p.  55. 
United  States  v.  Galacar,  1  Spraguo, 

545.    p.  4G1. 
United   States  v.  Haj-ward,  2   Gall. 

(U.  S.)  485.    p.  4G5. 
United  Stiites  v.  Jcnnegan,  4  Cranch 

C.  C.  118.    p.  300. 
United  States  v,  Lawrence,  4  Cranch 

C.  C.  514.     p.  280. 
United  Slates  v.  McGlue,  1  Curt.  1. 

p. 280. 
United    States    v.   McLean,    9    Pet. 

(U.  S.)G82.    p.  4\0. 
United  States  v.  Noelke,  17  Blatcbf. 

554.    p.  G9. 
United  States  v.  Pwandall,  Deady,  543. 

p.  543. 
United  States  v.  Rathbone,  2  Paine, 

578.     p.  507. 
United  States  v.  Ross,  92   U.  S.  283. 

pp.  509,  572. 
United  States    v.  "White,  5    Cranch 

C.  C.  73.    p.  36. 
University  of  Vermont  v.  Reynolds, 

3  Vt.  234.    pp.  410,  417. 
Upham  V.  Haskins,  62  Cal.  250  (1882). 

p.  53. 

V. 

Vail  p.  Foster,  4  N.  T.  312.     p.  354. 
Viiil  V.  Vail,  4  N.  Y.  812.    p.  353. 
Valentine  v.  Piper,  22  Pick.  85;  33 

Am.  Dec.  715.    p.  403. 
Vallett  V.  Parker,  6  Wend.  615.    p.  77. 
Van  Aernam  v.  Van  Aernani,  1  Barb. 

Ch.  375.    pp.  114,  118. 
Van  Biircn  v.  Cockburn,  14  Barb.  118. 

pp.  396,  576. 
Vance   v.  Com.,  2  Va,  Cas.  133.     p. 

179. 
Vandcrcock  v.  Baker,  48  Iowa,  199. 

p.  57. 
Vandervcere   v.  Gaston,  25  N.  J.  L. 

615.     p.  40. 
Vnndick  v.  VanBuren,  1  Caine's  Rep. 

84.    p.  427. 


Van  Etten  v.  Jilson,  6  Cal.  19.     p.  29. 
Van  Hook  v.  City  of  Selma,  70  Ala. 

3'Jl.     p.  58. 
Vanhorn  v,  Dorrance,  2    Dall.   306. 

p.  386. 
Van  Omeron   v.    Dowick,    2    Camp. 

44.    p.  54. 
Varner  v.  Nobleboro,  2  Me.  121.    p. 

354. 
Vather  v.  Zane,  6  Gratt.  246.     p.  77. 
Vaughn   v.  Raleigh,  etc.,  R.  Co.,  03 

N.  C.  11.    p.  185. 
Vaughn  V.  Rhodes,  2  JlcCord,  227; 

73  Am.  Dec.  713.    p.  115. 
Vermicombe  v.  Butler,  3  Sw.  &  T. 

5S0.     p.  83. 
Vilhirs  V.  Villars,  2  Atk.  71.    p.  159. 
Villars,  Ex  parte,  L.  R.  9  Ch.  App. 

443.    p.  204. 
Villo  de  Havre,  The,  7  Ben.  328.     p. 

121. 
Vernout  v.  "Welch,  2  A.  K.  Marsh,  12. 

p.  344. 
Vincent  v.  Eaves,  1  Mete.  247.    pp. 

40,  54. 
Virgin  v.  Brubaker,  4  Nev.  31.     p.  36. 
Voorhecs  v.  U.  S.  Bunk,  10  Pet.  474. 

pp.  30,  34. 

w. 

"Waddell  v.  Judson,  12  La.  Ann.  14. 

p.  54. 
"Waddell  v.  Magee,  53  Miss.  687.    p. 

54. 
VTadsworth,  Re,  2  La.  Ann.   9CG.  pp. 

39. 
Wagers  v.  Dickey,  17  Ohio,  439.     p 

29. 
"Wainwright,  Re,  1  Sw.  &  Tr.  257.     p. 

242. 
Wakeman  v.  !Marquand,  5  Mart.  (x. 

s.)  270.    p.  370. 
"Walker's  Case,  1  Leigh,  574.     p.  486. 
Walker's  Case,  6  City  Hall  Rcc.  137. 

pp.  279,  281. 
Walker  v.  Davis,  33  Me.  570.     p.  78. 
Walker  v.  Hauks.  27  Tex.  535.    p.  403. 
Walker  V.  Maxwell,  1  Mass.  103.     p. 

370. 


Ixxxvi 


TABLE   OF   CASES   CITED. 


Walker  v.  Ptntc,  49  Ala.  370.     p.  "0. 
Walker  v.  Walker,  1  Mo.  (App.')  404. 

p.  173. 
Wallace  v.  Agrj',  4  Mason,  33G.    p. 

S53,  S51. 
Wallace  v.  Bank,  1  Ala.  567.    p.  77. 
Wallace  v.  Cox,  71  111.  513.     p.  27. 
Wallace  v.  Harris,  32  Mich.  380.     p. 

120. 
Wallace  v.  Hull,  28  Ga.  68.    p.  69. 
Wallbridge  v.  Ellsworth,  44  Cal.  353, 

p.  35. 
Walls  V.  Bailey,  49  N.  T.  464.    pp. 

17,  74. 
Walrod  r.  Rail,  9  Barb.  271.    p.  173. 
Walsh  V.  City  Council,  67  Ga.  293. 

p.  58. 
Walsh  V.  Dart,  12  Wis.  635.     p.  370. 
Walters  v.  Short,  10  111.  252.     p.  397. 
Walthar  v.  Warner,  26  Mo.  143.     p. 

36. 
Walton  i;.  Eldridge,  1  Allen,  203.     p. 

851. 
Walton  V.  Gavin,  16  Q.  B.  48.     p.  50. 
Wambaugh   v.  Schlenk,  2  N.  J.  L. 

167.    p.  215. 
Wanmakcr  v.  Van  Buskirk,  1   Saxt. 

Ch.GSo;  23  Am.  Dec.  718.    pp.316, 

318,  333,  340. 
Ward  V.  Baker,  16  Kan.  31.     p.  36. 
Ward  V.  Barrows,  2  Ohio  St.  241.     p. 

55. 
Ward  V.  Evans,  Ld.  Kaym.  928.     p. 

354. 
Ward  V.  Howe,  38  N.  H.  35.    pp.  353, 

854. 
Ward  V.  Lewis,  4  Pick.  578.     p.  86. 
Ward  V.  Stale,  48  Ind.  290.     p.  54. 
AVard  v.  Stout,  82  111.  S09.    p.  19. 
AVard  v.  Ward,  36  Ark.  586.    p.  280. 
Warder  v.  Tucker,  7  Mass.  452.     p.  0. 
Wardour  v.  Beresford,   1  Vern.  408. 

p.  141. 
AVarfield  v.  Brand,   13  Bush,  77.     p. 

54. 
Waring  v.  Smyth,  2  Barb.  Ch.  11.     p. 

396. 
Warner  v.  Daniels,  1  Woodb.  &  31. 

90.    p.  120. 


Warner  v.  Henbj^  47  Pa.  St.  187.     pp. 

403,  407. 
Warren  v.  Anderson,  8  Scott,  884.     p. 

253. 
Warren  i;.  Crew,  22  Iowa,  315.     p. 

142. 
Warren  v.  Layton,  3  Harr.  (Del.)  404. 

p.  394. 
Warren  v.  Lusk,  16  Mo.  111.     p.  358. 
Warron  v.  Pierce,  6  Me.  1;  19  Am. 

Dec.  189.     p.  85. 
Warren  v.  State,  1  G.  Greene,   106. 

p.  525. 
Warren  v.  Webb,   2   Strange,  1129. 

p.  427. 
Wasden  v.  State,  18  Ga.  2G4.     p.  423. 
Waters   v.  People,   104  111.  545.     p. 

518. 
Watkin's  Case,  3  Pet.  193.     p.  30. 
Watkin's  Case,  1  Leigh,  557.    p.  491. 
Watkins  v.  Peck,  13  N.  H.  360;  40 

Am.  Dec.  156.     p.  405. 
Watkyns  v.  Watkyns,  2  Atk.  97.     p. 

93. 
Watrous  v.  Rogers,  16  Tex.  410.     p. 

10. 
Watson  V.  England,  14  Sim.  28.     pp. 

202,  238. 
Watson  V.  King,  1   Stark.  121.     pp. 

211,  231,  232. 
Watson  V.  Maxwell,  1  Stark.  121.     p. 

224. 
Watson  V.  Tindal,  24  Ga.  494.    pp. 

193,  212. 
Watson  V.  Watson,  9  Conn.  144.     p- 

30. 
Way  V.  111.  Cent.  R.  Co.,  40  la.  342. 

p.  192. 
Wealo  V.  Loraer,  Pollex.  55.     p.  195. 
Weatherford  v.  Weatherford,  20  Ala. 

548.    p.  106. 
Wcatherhead  v.  Baskerville,  11  How. 

829.     p.  40'.. 
Weaver   v.   Fairchild,    50    Cal.    360 

p.  53. 
Wel^b,  Ee,  Irish  Eep.  5  Eq.  235.    p. 

198. 
AVcbb  V.  Chambers,  3  Ired.  (L.)  374. 

70. 


TABLE   OF   CASES   CITED. 


Ixxxvii 


T\^cbb  V.  Dean,  21   Pa.  St.  31.     pp. 

821,  327. 
Webb  V.  Depn,  17  How.  570.     p.  503- 
Webb  V.  Fri:z,  8  I5:ixt.  218.     p.  65. 
Webb  V.  Stute,  9  Tex.  App.  IHO,     p. 

459. 
Webber  v.  Webber,  1  Mete.  (Ky.)  18. 

p.  51. 
Webster's  Case.     p.  443. 
Webster  r.  Birchmore,  13  Vesey,  802. 

pp.  195,  222. 
Webber  v.  Gottschalk,   15  La.  Ann. 

370.     p.  54. 
Webster  v.  Lee,  5  Mass.  534.    p.  78. 
Weeks  V.  Ellis,  2  Barb.  325.     p.  49. 
WciJner  v.  Scweigert,  9  S.  &K.  385. 

p.  347. 
Weir  V.  Weir,  3  B.  Mon.  045.     p.  75. 
Welch  V.  Sackett,  12  Wis.  257.     pp. 

108,  304. 
Welch  V.  Seaborn,  1   Stark.  474.     p. 

SOL 
Wellauer  v.  Fellows,  48  Wis.  105.     p. 

852. 
Wellersburg,  etc.,   Co.  v.   Bruce,  0 

Md.  457.    p.  54. 
Wells  V.  Burbank,  17  N.  H.  393.     p. 

54. 
Wells  V.  Moore,  15  Tex.  521.     p.  397. 
Wendell  v.  Blanchard,  2  N.  H.  450. 

p.  403. 
Wentworth  v.  Lloyd,  10  H.  L.  Cas. 

689.    p.  137. 
Wentworth  v.  Smith,  44  N.  11.  419. 

p.  182. 
Wentworth   v.   Wentworth,   71    Me. 

83.    pp.  212,  215. 
Wenz  V.  State,  1   Tex.  App.  36,     p. 

274. 
Wcrk  V.  Leathers,  1  Woods,  272.     p. 

102. 
Wcrnet  v.  SlL^sissquoi  Lime  Co.,  40 

Vt.  458.    p.  344. 
West  V.  State,  1  Wis.  209.     pp.  451, 

587. 
West  School  District  v.  Merrills,  12 

Conn.  437     p.  53. 
Weston  V.  Hij^'gins,  40  Me.  102.     p. 
179. 


Weston  V.  Wiley,  78  Ind.  55.    p.  SS'l 
Whaley  v.  State,  11  Ga.  127.     p.  538 
Wheat  V.  Slate,  G  Mo.  4'5.     p.  405. 
Wheeler,  Re,  37  L.  J.   (!'.  &  M.)  40, 

p.  211. 
Wheeler  t?.  Raymond,  8  Cow.  311.    p 

.'iO. 
Wheelock  v.  Hall,  3  N.  H.  310.    p 

54. 
Whelton  v.   Hardesty,   8  El.   &  CI 

232.     p.  609. 
Wheelwright  v.  Wheelwright,  2  Mass, 

447.     p.  303. 
Whister  v.  Drake,  35  Iowa,  103. 

353. 
Whitakeru.   Edmunds,    1  M.   &  R. ; 

Ad.  &EI1.G:J3.     p.  97. 
Whitaker  v.  Morrison,  1  Fla.  25;  44 

Am.  Dec.  027.     p.  576. 
White  V.  Haas,  32  Ala.  432.    p.  390. 
Wliito   V.  Knapp,  47    Barb.  549.    p. 


White  V.  Lincoln,  8  Yes.  303.    pp. 

148,  540. 
White  V.  Loring,  24  Pick.  319.     p. 

404. 
White  V.  Mann,  26  Mo.  363.    p.  224. 
White  V.  Sheldon,   4  Nev.   280.    p. 

S04. 
White  V.  Wilson,  13  Vesey,  87.     p. 

179. 
Whitelock  v.  Musgrovo,  3  Tyrw.  543. 

p.  254. 
Whiteside's  Appeal,  23  Pa.  St.  114. 

p.  201. 
AVhitcwell  v.  Barbour,  8   Cal.  64.     p. 

29. 
Whitford  v.  Panama  R.  Co.,  23  X.  Y. 

405.     p.  373. 
Whiting  V.  Nicholl,  43  111.  235.    p. 

201. 
Whitman  v.  State,  34   Ind.  312.    p. 

118. 
Whilton  V.  State,  37  Miss.  379.     pp. 

7,  453. 
Wickcrsham  v.  People,  2  111.  128.     p. 

256. 
Wickes  f.  Adirondack  Co.,  4Thomp., 

etc.,  250.    p.  420. 


Jxxxviii 


TABLE   OF    CASES    CITED. 


TViclccs  V.  Caulk,  5  H.  &  J.  41.    p. 

381. 
Wickbam  v.  Page,  40  Mo.  527.    p. 

36. 
Widow's  Trust,  L.  K.    11    Eq.   408. 

p.  303. 
Wikoffs  Appeal,  15  Pa.  St.  218.    p. 

381. 
Wilde  V.  Arsmby,   G  Cush.  314.     p. 

393. 
Wilcox  V.  Wilcox,  48  Barb.  327.     p. 

75. 
Wilcox  V.  Smith,  5  Wend.  231.    p. 

47. 
Wilkes  V.  Dinsman,  7  How.  89.     p. 

55. 
Wilkie  V.  Collins,  48  Miss.  496.     pp. 

449,  584. 
Wilkins  v.  Earle,  44  N.  Y.  172.    p. 

166. 
Wilkinson  v.  Payne,  4  T.  K.  468.    pp. 

94,  435,  451,  586. 
Wilkinson  v.  Sargent,  9  la.  521.    p. 

77. 
Willet  V.   Com.,   13  Bush,  230.    p. 

284. 
Willey  V.  Di\y,  51  Pa.  St.  51.     p.  403. 
Williams  v.  Ashton,  Johns.  &  M,  115. 

p.  387. 
Williams  v.  Boozeman,  8  La.  Ann, 

632.    p.  2f;4. 
Williams  v.  Donnell,  2  Head,  698.    t). 

403. 
Williams  v.  East  India  Co.,  3  East, 

104.    pp.  94,  277,  436 
Williams  v.  Hutchinson,  3  K  Y,  312. 

p.  75. 
Williams  v.  Ins.  Co.,  1  Hilt.  345.    p. 

68. 
Williams  v.  State,  8  Humph.  590.    p. 

487. 
Williams  v.  Troop,  17  Wis.  463.    p. 

55. 
Williams  v.  Woods,  16  Md.  220.    p. 

89. 
Williamson  v.  Fox,  38  Pa.  St.  214. 

p.  40. 
Williamson  v.  Williamson,  1   Johns. 

Ch,  488.    p.  425. 


Willingham  v.  Check,  14  S.  C.  93 

p.  308. 
Willis    V.  Lewis,  28  Tex.  185.    pp, 

55,  56. 
Wills  V.  Gibson,  7  Pa.  St.  154.     p 

320. 
Willson  V.  Light,  4  Ark.  158.     p.  34 
Wilson   V.  Cassidy,  2    Ind.  562.     p 

160. 

Wilson  V.  Cockrill,  8  Mo.  7.     p.  370, 
Wilson  V.  Doughertj',  45  Cal.  34.     p 

35. 
Wilson  V.  Glenn,  68  Ala.  383.     p.  404. 
Wilson  V.  Henderson,  9  S.  &  M.  375 

48  Am.  Dec.  716.     p.  385. 
Wilson  V.  Hodges,  2  East,  313.     pp. 

193,  201. 
Wilson  V.  Melvin,  13   Gray,  73.     p. 

403. 
Wilson  V.  People,  3  Col,  325.     p.  35. 
Wilson   V.  Smith,  5   Yerg.  379.     p. 

17G. 
Wilson  V.  Stoner,  9  S.  &  E.  664.     p. 

415. 
Winchell  v,  Edwards,  57  111.  41.     p. 

142. 
Winchelsea  Cases,   Burr,  1692.     pp. 

311,  331. 
Winehart  v.  State,  6  Ind.  30.     pp.  7, 

454. 
Wing  V.  Ungrave,  6  H.  L.  Cas.  183. 

p.  242. 
Winkley  v.  Kaime,  32  N.  H.  266.     pp. 

163,  419. 
Weership  v.  Conner,   42  N.   H.  344. 

p.  222. 
Winter  v.  Simonton,  3  Cranch  C.  C. 

104.    p.  55. 
Wise  V.  State,  24  Ga.  31.    p.  518. 
Wollaston   v.  Berkeley,  2   Ch.  Div. 

213,    p.  241. 
Wood  V.  Corl,  4  Mete.  203.     pp.  371, 

372. 
Wood   V.   Hardy,  11   La.  Ann.  7G0. 

p.  844. 
Wood  V.  Lake  Shore  K.  Co.,  49  Mich. 

370.    p.  36. 
Wood  V.  Mathews,  73  Mo.  482.    p. 
181. 


TABLE    OF    CASES   CITED. 


Ixxxix 


Wood  V.  State,  34  Ark.  341.    p.  274. 
AVuod  V.  Terry,  4  L11118.  80.    p.  o'). 
AVooJs  V.  Woods,  2  B:iy,  476.     p.  200, 
Woods  V.  Woods,  127  Muss.  141.     p. 

3')5. 
Woods  V.  State,  G  B:ixt.  426.     p.  5'). 
Wood  worth  V.  Huiitooii,  40  111.  i;]l. 

p.  77. 
Woolscy  V.  Morss,  19  Hun,  273.     p. 

405. 
Woolsey  V.  Villnge    of   Rondout,   4 

Abb.  App.  Dec,  639.     pp.  47.  60. 
Wootcn  V.  Null,  \6  Gu.  609.    p.  345. 
AVorley  v.  Ili-b,  40  Ala.  171.    p.  320. 
Wray  v.  Due.  10  S.  &  JI.  452.     p.  54. 
Wright   V.   Delufield,  23    Barb.  498. 

p.  374. 
Wriirlit  V.  Hicks,  12  Ga.  155.     p.  116. 
Wrightr.  Holdgate,  3C.  «fcK.158.    p. 

118. 
Wrifrht  V.  Lawson,  2  M.  «&  W.  739. 

p.  89. 
Wrii^ht  V.  Netherwood,  2  Salk,  502. 

p.241. 
Wright  V.  Orient  Ins.  Co.,  6   Bosw. 

270.     pp.  191,  581. 
Wright  V.  People,  4    Neb.  408.    p. 

459. 


Wright  V.  State,  58  Miss.  832.     p.  54. 
Wynne  v.  Waring,  1   T.  E.  20.    p. 
336. 

y. 

Ynrborough  v.  State,  41  Ala.  405.     p. 

4S7. 
Yii:  nell   V.   Moore,  3  Cold.  173.     p. 

320. 
Yules  V.  Houston,  3  Tex,  433.     pp. 

93,  435,  448,  583,  584. 
Yuuko  V.  State,  51  Wis.  466.     p.  493. 
Ycaton    V.    Bk.    of    Alexandria,    6 

Crunch,  9.     pp.  17,  73. 
Young  V.  Dorsey,  2  Litt.  202.     p.  36. 
Young  t;.  liidonbaugh,  3  Dill.  23.     p. 

36. 
Youngman  v.  Linn,  52   Pa.  St.  413. 

p.  403. 
Youngs  V.  HeflFner,  36  Ohio  St.  232. 

p.  200. 

z. 

Zeigler  v.  Eckhart,  6  Pa.  St  13 ;  47 

Am.  Dec.  428.     p.  304. 
Zeigler  v.  Gray,  12  S.  &  R.  42.    p. 

346. 
Zerano  v.  Wilson,  8  Cush.  424.    p. 

354. 


THE  LAW  OF 

Presumptive  Evidence 


(INCLUDING  PEESUMPTIONS  BOTH  OF 
LAW  AND  FACT) 


REDUCED  TO  RULES. 


(1) 


I 


PART  I. 


THE  PRESUMPTION  OF  KNOWLEDGE. 


(3) 


CHAPTEE    I. 

TIIE  PRESOIPTIONS  OF  KNOWLEDGE   OF   LAW  AND 

FACT. 

RULiE  1.  —  Every  one  is  presumed  to  know  the  law  when 
ignorance  of  it  would  relieve  from  the  consequences 
of  a  crime  or  from  liability  upon  a  contract.^ 

The  presumption  that  every  person  knows  the  law  is  often 
spoken  of,  but  it  is  clear  that  there  is  no  such  general  pre- 
sumption. When  Mr.  Dunning,  in  arguing  before  Lord 
Mansfield,  said;  "The  laws  of  this  country  are  clear, 
evident,  and  certain ;  all  the  judges  know  the  laws,  and 
knowing  them  administer  justice  with  uprightness  and 
integrity,"  that  learned  judge  replied  :  *'As  to  the  certainty 
of  the  law  mentioned  by  Mr.  Dunning,  it  would  be  very 
hard  upon  the  profession  if  the  law  was  so  certain  that 
everybody  knew  it ;  the  misfortune  is  that  it  is  so  uncer- 
tain that  it  costs  much  money  to  know  what  it  is,  even  in 
the  last  resort."^  "Is  it  not  a  mockery,"  said  Mr. 
Livingston,  in  his  report  on  the  Louisiana  Penal  Code,  *'  to 
refer  me  to  the  common  law  of  England  ?  Where  am  I  to 
find  it?  Who  is  to  interpret  it  for  me?  If  I  should  apply 
to  a  lawyer  for  a  book  that  contained  it,  he  would  smile  at 
my  ignorance,  and  pointing  to  about  five  hundred  volumes 
on  his  shelves  would  tell  me  those  contained  a  small  part  of 
it ;  that  the  rest  was  either  unwritten  or  might  be  found  in 
London  or  New  York,  or  that  it  was  shut  up  in  the  breasts 
of  the  judges  at  Westminster  Hall.     If  I  should  ask  him  to 

1  See  Laing  r.  Colder,  8  Pa.  St.  470;  49  Am.  Dec.  533  (1S4S) ;  Kay  v.  Connor,  8 
Humph.  6'24 ;  49  Am.  Dec.  090  (1848) ;  Cluff  v.  Mutual  Benefit  Life  Ins.  Co.,  13  Allen,  308 
(1860) ;  Sberrill  v.  Hopkins,  1  Cow.  103  (1823) ;  Hanrick  r.  Andrews,  9  Port.  576  (18:59) ; 
Cast  V.  Drakely,  2  Gill,  330  (1*14) ;  Oilex  r.  Card,  23  Ind.  212  (1804) ;  Brown  r.  Beers, 
6  Conn.  213  (1826) ;  Cockayne  r.  Sumner,  22  Pick.  117  (1839). 

»  Jones  V.  Randall,  Cowp.  38. 

(5) 


6  PRESUMPTIVE   EVIDENCE.  [rULE    1. 

examine  his  books  and  give  me  the  information  which  the 
law  itself  ou"-ht  to  have  afforded,  he  would  hint  that  he 
lived  by  his  profession,  and  that  the  knowledge  he  had 
acquired  by  hard  study  for  many  years  6ou\d  not  be  gratu- 
itously imparted."  Certainty  in  the  law  has  hardly 
increased  since  Lord  Mansfield's  time,  and  Mr.  Livingston's 
lawyer  would  to-day  point  to  a  library  of  five  thousand 
instead  of  five  hundred  volumes.  We  may,  therefore,  safely 
say  with  Mr.  Justice  Maule,  "  there  is  no  presumption  in 
this  country  that  every  person  knows  the  law ;  it  would  be 
contrary  to  common  sense  and  reason  if  it  were  so,"  and 
add,  as  he  did,  with  a  quiet  dig  at  his  learned  brethren :  *'  If 
everj'body  knew  the  law,  there  would  be  no  need  of  courts 
of  appeal,  whose  existence  shows  that  judges  may  be  igno- 
rant of  law." 

Illustrations. 

I.  A.  sues  B.  in  trover  for  property.  On  the  trial  evidence  is  intro- 
duced of  admissions  by  B.  that  the  property  is  A.'s.  The  presumption  is 
that  these  admissions  were  made  not  only  with  a  knowledge  of  the  facts, 
but  of  his  legal  rights  growing  out  of  these  facts.i 

II.  An  action  is  brought  against  the  makers  of  a  note  personally  signed 
by  them  as  trustees  of  the  M.  E.  Church.  The  defendants  plead,  that 
they  were  induced  to  give  the  note  by  representations  that  they  would 
not  be  individually  liable.  This  is  no  defense,  for  the  presumption  is  that 
they  knew  their  liability. 

III.  A.  having  two  judgments  of  different  dates  against  G.  issues  exe- 
cution on  the  second,  under  which  G.'s  land  is  sold  to  B.  A.  afterward 
proceeds  against  the  land  under  the  first  judgment,  to  which  B.  replies 
that  he  had  purchased  believing  the  law  to  be  that  the  sale  on  the  second 
judgment  extinguished  the  first.    This  is  no  defense.* 

IV.  The  drawer  of  a  bill  of  exchange  knowing  that  time  had  been  given 
by  the  holder  to  the  acceptor,  but  not  knowing  that  this  discharged  him, 
and  thinking  himself  still  liable,  promises  to  pay  it  if  the  acceptor  does 
not.    He  is  bound  by  this  promise  though  made  under  a  mistake  of  law. 

1  BuUer  v.  Livingston,  15  Ga.  ."jes  (ia54). 

»  Means  v.  Graham,  8  Blackf.  144  (1846). 

3  Shotwell  V.  Murray,  1  Johns.  Ch.  512  (1815) ,  and  see  Champlin  v.  Layton,  18  Wend. 
407 ;  Zl  Am.  Dec.  382  (1837). 

«  Stevens  v.  Lynch,  12  East,  38  (1810),  and  see  Goodman  v.  Sayres,  2  Jac.  &  W.  26.3 
(1820) ;  Brisbane  v.  Dacres,  5  Taunt.  143  (1813) ;  East  India  Co.  v.  Tntton,  3  B.  &  C. 
280  (1824);  Stockley  i-.  Stockley,  1  V.  &  B.  23  (1813);  Clarke  v.  Dutcher,9  Cow.  674 
(1824) ;  Warder  v.  Tucker,  7  Mass.  452  (1811). 


RULE    1.]        THE   rnESUMPTION'   OF   KNOWLEDGE.  7 

v.  A  statute  prohibits  the  selling  of  liquor  to  an  intoxicated  person, 
and  prescribes  a  penalty  therefor.  B.  sells  liquor  to  an  intoxicatea 
person  not  being  aware  of  the  law.  B.  Is  nevertheless  liable  as  he  is 
presumed  to  know  it. ^ 

VI.  A  public  officer  is  indicted  for  extortion  in  taking  a  fee  before  it 
was  due.  The  fee  being  due  to  him  after  a  time  in  any  event,  he  thought 
that  the  law  allowed  him  to  take  it  in  advance.  This  is  no  excuse  and  he 
is  convicted.' 

VII.  A.  is  indicted  for  suffering  gaming  in  his  house.  It  appears  that 
A.  does  not  know  it  is  unlawful  to  permitgamiug  in  his  house,  ilis  igno- 
rance of  the  law  does  not  excuse  A.' 

VIII.  A  statute  requires  attorney's  bills  to  inform  their  clients  on  their 
face  of  the  mailers  transacted  and  the  courts  iu  which  the  things  charged 
for  have  been  done.  A  bill  delivered  to  a  client  contains  charges  for 
''perusing  decrees  and  reports  at  the  report  office."  "  Six  clerks' office 
searching  for  a  record."  The  client  will  not  be  presumed  to  know  iu 
what  courts  these  offices  are.* 

IX.  At  an  election,  a  number  of  votes  are  polled  for  one  B.,  who  Is 
acting  at  the  time  as  returning  officer.  By  the  law  a  returning  officer  is 
not  eligible  as  a  candidate,  and  all  the  voters  know  that  B.  is  acting  in  this 
capacity.     There  is  no  presumption  that  they  knew  that  he  is  disqualified.* 

X.  A.  finds  a  mortgage  on  record  over  thirty  years  old.  The  law  from 
lapse  of  time  presumes  it  paid.  If  A.  purchases  the  mortgage  he  is  pre- 
sumed to  know  that  it  is  presumed  to  be  paid.* 

XL  A.  is  sentenced  to  the  penitentiary  by  a  court  having  no  jurisdic- 
tion to  try  him.  In  in  action  against  the  gaoler  and  contractor  for 
trespass,  the  law  presumes  that  they  knew  the  law  and  that  they  had  no 
right  to  hold  him.' 

XII.  A.  having  found  some  property  secretes  it  with  intent  to  defraud 
the  owner  contrary  to  a  statute.  A.  is  indicted  under  the  statute  for  lar- 
ceny. A.  is  a  negro.  The  fact  that  it  is  the  common  belief  among  the 
negroes  in  the  neighborhood  that  property  belongs  to  the  finder  is  irrel- 
evant.® 

XIII.  A.  deals  with  a  person  whom  he  knows  to  be  a  broker.  A.  is 
presumed  to  know  that  he  is  acting  as  an  agent  for  some  third  person.* 

1  Whitton  r.  State.  37  Miss.  379  (1859). 

a  Com.  V.  Bagley,  7  Peck.  279  (1828).  But  see  Cutler  v.  State,  36 N.  J.  (L.)  125  (1873) 
where  in  a  similar  case,  the  coiiTiction  -was  set  aside  on  the  ground  that  the  intent 
was  wanting. 

«  ■Winehart  v.  State,  6  Ind.  30  (1854). 

*  Martindalc  v.  Falkner,  2  C.  IJ.  715  (1840). 

6  Queen  v.  Mayor  of  Tewkesbury,  I,,  li.  3  Q.  B.  620  (1868). 

•  Goodwynt'.  Baldwin,  59  Ala.  127  (1877). 

1  Pattison  v.  Prior,  IS  Ind.  440  (1.SG2),  and  see  Daniels  v.  Barney,  22  Ind.  207  (18G4). 

«  State  V.  Welch,  73  Mo. 2*4  (1880). 

8  Baxter  v.  Dureu,  29  Me.  434 ;  00  Am.  Dec.  G02  (1849). 


8  PRESUMPTIVE  EVIDENCE.         [rULE  1. 

In  case  I.  the  trial  court  had  charged  the  jury  that  if  the 
admissions  "were  made  with  a  full  knowledge  of  all  the  facts, 
and  his  rights  growing  out  the  facts,  they  were  evidence 
a^^ainst  B.  On  appeal  this  was  held  erroneous.  *'  Until  the 
contrary  appears,"  said  Lumpkin,  J.,  *'  every  man  is  taken 
to  be  cognizant  of  the  law.  The  doubt  and  difficulty  has  been 
not  whether  the  burden  of  proof  is  not  cast  upon  him  who 
seeks  to  screen  himself  from  the  effect  of  his  acts  by  show- 
ing that  they  were  done  in  ignorance  of  his  legal  rights  ; 
that  has  never  been  disputed.  And  the  only  question  is 
whether  the  party  will  be  allowed  this  excuse.  Whereas, 
in  this  case  it  was  held  that  the  solemn  admissions  of  fact 
by  B.,  that  the  title  to  this  property  was  not  in  him  but  A., 
did  not  make  even  ^  prima  facie  case  as  to  proof,  unless  it 
was  shown  that  he  made  these  admissions  with  not  only  a 
full  knowledge  of  all  the  facts,  but  of  his  legal  rights  grow- 
ing out  of  those  facts.  Such  a  doctrine,  we  apprehend,  is 
not  only  unsupported  by  authority,  but  manifestly  against 
principle." 

Incase  II,  it  was  said:  "That  representation  cannot 
affect  the  plaintiff 's  right  to  recover.  It  was  a  representa- 
tion made  to  the  defendants  respecting  a  question  of  law, 
and  can  not  be  considered  as  having  misled  them.  They 
must  be  presumed  to  have  known  the  legal  effect  of  their 
contract."  ^ 

In  case  III.  it  was  said  :  "According  to  B.'s  own  show- 
ing he  was  only  under  a  mistake  in  point  of  law  ;  and  that 
mistake  not  being  produced  by  any  fraud  in  A.  is  not  suffi- 
cient of  itself  to  affect  the  former  lien  or  the  validity  of  the 
sale.     *     *     *     In  gucji  ^  case  the  general  doctrine  which 

1  In  Storrs  v.  Baker,  6  Johns.  Ch.  166  (1822),  it  was  said  by  the  chancellor:  " The 
presumption  is  that  every  person  is  acquainted  with  his  own  rights  provided  he  Jias 
had  reasonable  opportunity  to  know  them,  and  nothing  can  be  more  liable  to  abuse 
than  to  permit  a  person  to  reclaim  his  property  in  opi)osition  to  all  the  equitable 
circumstances  which  have  been  stated,  upon  the  mere  pretense  that  he  was  at  the 
time  ignorant  of  his  title."  "  The  courts  do  not  undertake  to  relieve  parties  from 
their  acts  and  deeds  fairly  done  on  a  full  knowledge  of  facts,  though  under  a  mistake 
of  law.  Every  man  is  to  be  charged  at  his  peril  with  a  knowledge  of  the  law. 
There  is  no  other  principle  which  is  safe  and  practicable  in  the  common  intercourse 
of  mankind."    Lyon  v.  Kichmond,  2  Johns.  Ch.  51  (1816). 


RULK    1.]        THE   PRESUMPTION   OF   KNOWLEDGE.  9 

wc  find  established  must  prevail  that  every  man  is  to  be 
charfjed  with  a  knowledge  of  the  law." 

In  case  IV.  Lord  EllenborouMi  ruled  that  the  defendant 
could  not  defend  himself  upon  the  ground  of  his  ignorance 
of  the  law  when  he  made  the  promise. 

In  case  V.  it  was  said:  "As  he  is  bound  to  know  the  law, 
he  is  held  to  the  consequences  of  a  willful  violation  of  it 
whether  he  knew  of  its  existence  or  not.  Otherwise  it 
would  be  difficult  to  punish  any  man  for  a  violation  of  law, 
because  it  might  be  impossible  to  prove  that  he  had  knowl- 
edge of  the  law.  Hence  the  legal  presumption  that  every 
man  knows  the  law,  and  that  his  violations  of  it  are  will- 
ful." 

In  case  VT.  it  was  said:  <'  This  is  the  case  of  an  honest 
and  meritorious  public  officer  who  by  misapprehension  of 
his"  rights  has  demanded  a  lawful  fee  for  a  service  not  yet 
performed,  but  which  almost  necessarily  must  be  performed 
at  some  future  time.  If  we  had  authority  to  interfere  and 
relieve  from  the  penalty,  we  certainly  should  be  inclined  to 
do  so,  but  we  are  only  to  administer  the  law." 

IncaseVIII.it  was  said:  <' There  comes  a  charge  for 
perusing  decrees  and  reports  at  the  report  office,  which  it 
is  said  the  client  must  know  could  only  be  in  chancery.  I 
do  not  agree  that  the  client  is  to  be  presumed  to  know  any 
thing  of  the  kind.  Then  there  is  a  charge  for  *  attending 
at  the  six  clerks'  office,  searching  for  a  record.'  This,  it 
is  said,  must  be  in  a  court  of  chancery.  I  really  am  unable 
at  the  present  moment  to  say  whether  there  is  or  is  not  such 
an  office  now  existinc:  as  the  six  clerks'  office:  and  I  do  not 
see  why  Miss  Mary  Falkner  is  bound  to  know  it.  The 
bill  *  »  *  presupposes  the  client  to  possess  a  consid- 
erable knowledge  of  the  law.  There  is  no  presumption  in 
this  country  that  every  person  knows  the  law;  it  would  be 
contrary  to  common  sense  8,nd  reason  if  it  Avcre  so." 

*'  Every  elector,"  said  Blackburn,  J.,  in  case  IX.  *'  must 
have  known  that  B.  was  the  mayor,  and  every  elector  who 
saw  him  presiding  at  the  election  must  have  known  as  a  fact. 


10  PEESU3IPTIVE   EVIDENCE.  [rULE    1. 

that  he  was  the  returning  officer,  and  evciy  elector  who  was 
a  lawyer  and  who  had  read  the  case  of  Reg.  v.  Owens,^ 
would  know  that  he  was  disqualified.  From  the  knowledge 
of  the  fact  that  B.  was  mayor  and  returning  officer,  was 
every  elector  bound  to  know  as  a  matter  of  law  that  he  was 
di:<qualified?  I  agree  that  ignorance  of  the  law  does  not 
excuse.  But  I  think  that  in  Martindale  v.  Falkner  (Case 
VIII.),  Maule,  J.,  correctly  explains  the  law."  And  Lush,  J. 
added  :  "A  maxim  has  been  cited  which  it  has  been  argued 
imputes  to  every  person  a  knowledge  of  the  law.  The 
maxim  is  ignorantia  legis  neminem  excusat,  but  there  is  no 
maxim  which  says  that  for  all  intents  and  purposes  a  per- 
son must  be  taken  to  know  the  legal  consequences  of  his 
acts."  2 

Case  XI.  carries  this  presumption  very  far.  In  Brent  v. 
State,'  it  was  ruled  that  the  presumption  of  knowledge  of 
law  did  not  extend  to  presuming  that  a  person  knew  how 
the  courts  would  construe  a  statute,  and  whether  it  was 
constitutional  or  unconstitutional.  The  defendants  here 
were  indicted  for  conducting  a  lottery,  and  showed  an  act 
of  the  Legislature  permitting  them  to  do  so.  The  court 
held  the  act  unconstitutional,  but  said  :  "  We  see  no  good 
reason  why  the  State  as  well  as  an  individual  is  not  to  be 
held  bound  by  this  salutary  and  just  maxim  that  '  no  man 
shall  take  advantage  of  his  own  wrong.'  *  We  think  it  clear 
that  the  appellant  did  not  intend  to  violate  any  penal  or 
other  law  of  the  State.  In  other  words,  that  he  acted  in 
good  faith,  and  verily  believed  he  was  doing  what  the  State, 
by  this  statute  clearly  authorized  him  to  do.  But  it  is 
insisted,  on  the  part  of  the  State,  that  everybody  is  pre- 
sumed to  know  the  law.  This,  properly  understood,  is 
true,  but  it  is  a  rule  of  presumption,  adopted  from  neces- 
sity, and  to  avoid  an  evil  that  would  otherwise  constantly 


1  2  E.  A  E.  86.    And  see  Black  v.  Ward,  27  Mich.  191  (1S73). 

s  Watrous  v.  Rogers,  16  Tex.  410  (1856). 

»  4.3  Ala.  297  (1869). 

*  Broom's  Legal  Maxims,  top  page  205. 


RULE    1.]        THE   PRESU3IPTI0N   OF   KNOWLEDGE.  11 

perplex  the  courts,  in  the  administration  of  the  criminal 
law;  that  is,  the  plea  of  ifrnorance.  Hence  the  maxim, 
that  'ignorance  of  the  law  excuses  no  one.'  The  courts 
and  the  profession,  however,  well  know  that  this  necessary 
rule  of  presumption,  is  often,  and  perhaps  oftenor  than 
otherwise,  presuming  against  the  truth.  But  we  think  the 
State  presses  this  necessary  rule  beyond  its  proper  meas- 
ure, and  insists  that  the  appellant  was  not  only  bound  to 
know  the  existence  of  the  law,  but  in  this  case,  Avas  pre- 
sumed to  know  this  special  act  of  the  Legislature  was,  and 
would  be  held,  unconstitutional,  and  was,  therefore,  void 
and  no  law.  AVe  can  not  consent  to  carry  this  rule  of  pre- 
sumption to  this  extent;  it  must  be  confined  to  presuming 
that  all  persons  know  the  law  exists,  but  not  that  they  arc 
presumed  to  know  how  the  courts  will  construe  it,  and 
whether,  if  it  be  a  statute,  it  will,  or  will  not,  be  held  to  be 
constitutional.  To  extend  this  rule  beyond  this  limit,  will  be 
to  implicate  the  Legislature  who  passed,  and  the  Governor 
who  approved  the  act,  in  a  charge  of  gross  immorality  and 
dishonesty.  If  the  appellant  is  to  be  presumed  to  know 
the  act  was  unconstitutional,  the  same  presumption  will  fix 
upon  them  the  same  extent  of  knowledge;  that  is,  that 
they  knew  the  act,  when  it  was  passed  and  approved,  was  in 
conflict  with  the  constitution  ;  and  if  this  be  so,  it  will  be  a 
hard  matter  to  clear  either  from  this  grave  implication. 
But  we  are  satisfied  the  rule  must  have  the  limit  we  give  it. 
To  hold  otherwise,  will  take  from  the  rule  all  its  virtue, 
and  make  it  odious  to  all  right  and  just  thinking  men." 

Incase  XII.  it  was  said:  "  The  defendant  offered  evi- 
dence to  prove  that  it  was  a  general  belief  among  colored  peo- 
ple in  that  county  that  money  or  property  found,  having  no 
marks  upon  it  to  indicate  its  ownership,  belonged  to  the 
finder.  The  court  proper!}''  excluded  the  evidence.  It  is  a 
principle  as  old  as  the  common  law  that  ignorance  of  the 
law  is  no  excuse  for  its  violation ;  and  the  law  is  the  same 
for  a  colored  as  for  a  white  person.  We  have  not  now  a 
criminal   code  for  the  whites  and  a  different  one  for  the 


12  PRESUMPTIVE   EVIDENCE.  [rULE    1. 

blacks.  Under  our  present  constitution  no  law  making 
such  a  distinction  would  be  of  any  validity.  Wharton's 
Crim.  Law,  sec.  88,  p.  1794,  is  cited  as  sustaining  the 
proposition  that  taking  possession  of  money  and  determin- 
ing to  keep  it  under  an  honest  belief  of  a  right  to  do  so 
because  found,  is  a  good  defense.  There  is  no  section  88  at 
page  1794,  and  the  sections  on  that  page  do  not  relate  to  the 
subject  under  consideration,  but  section  87,  page  87,  asserts 
the  general  proposition  that  '  ignorance  or  a  mistake  of  fact 
is  admissible  for  the  purpose  of  negativing  a  particular 
intention,'  and  that  '  when  a  particular  intent  is  necessary 
to  constitute  the  offense  (e.g.,  in  larceny,  animus  furandif 
in  murder,  malice),  then  ignorance  or  mistake  is  evidence  to 
cancel  the  presumption  of  intent  and  to  work  an  acquittal 
either  total  or  partial.'  But  in  section  88,  he  says: 
'  When  a  statute  makes  an  act  indictable  irrespective  of 
guilty  knowledge,  then  ignorance  of  fact  is  no  defense.' 
On  this  proposition  some  learned  authors  differ  in  opinion 
fromMr.  Wharton.^  However  this  may  be,  the  section  of  our 
criminal  code  in  question  makes  it  a  felony  in  a  finder  of 
goods  or  money  belonging  to  another  to  convert  them  to  his 
own  use  with  intent  to  defraud  the  owner,  or  to  make  way 
with,  or  secrete  them  with  that  intent ;  and  proof  of  igno- 
rance of  the  law,  or  that  the  finder  believed  that  he  acquired 
the  title  by  finding  the  property,  does  not  tend  to  disprove  the 
intent  to  convert  it  to  his  own  use.  If  he  did  the  act  with 
the  double  intent  named  in  the  section,  it  is  no  defense  that 
in  his  ignorance  of  the  general  law  he  supposed  that  by 
finding  he  became  the  owner  of  the  property.  It  would  be 
no  defense  that  he  was  ignorant  of  the  section  under  which 
he  was  indicted,  which  of  itself  apprises  him  that  lost  prop- 
erty does  not  belong  to  the  finder,  and  why  his  ignorance  of 
the  general  law  to  the  same  effect  should  avail  him  as  a 
defense,  is  beyond  our  conprehension.  By  imposing  a  severe 
punishment  upon  the  finder  who  converts  to  his  own  use 

1  Bishop,  4  South.  Law  Rev.  (N.  8.)  58. 


EULE    1.]        THE    rRESUMPTION    OF   KNOWLEDGE.  13 

the  property  of  another,  direct  information  is  imparted 
that  such  does  not  become  his  by  such  tinding.  This  is  the 
import  of  the  hinguage  of  the  section,  and  it  is  in  harmony 
with  a  legal  principle  well  established  long  before  that  sec- 
tion was  enacted.  It  will  not  be  contended  that  ignorance 
of  the  statutory  provision  will  excuse  its  violation,  and 
if  ever  ignorance  of  the  law  could  constitute  a  defense  it 
certainly  will  not  do  so  when  the  identical  section  under 
which  the  accused  is  prosecuted  informs  him  of  the  very 
principle  of  law  of  which  he  avers  his  ignorance." 

So  a  suitor  in  court  is  presumed  to  know  all  the  proceed- 
ings which  take  place  in  his  case.^  And  the  terms  of  the 
Supreme  Court  of  a  State  being  fixed  by  statute,  parties  to 
a  cause  in  the  courts  of  such  State  are  presumed  to  know 
the  terms  of  the  Supreme  Court. '^  So  parties  are  presumed 
to  know  the  contents  of  the  public  records^  and  a  member 
of  a  municipal  corporation  is  presumed  to  be  aware  of  its 
by-laws  and  ordinances.*  But  the  officers  of  a  municipal 
corporation  are  not  ])rcsumed  to  be  acquainted  with  the 
contents  of  all  the  official  records.  L.  brings  an  action 
against  the  mayor  and  clerk  of  the  city  of  A.  for  a  libel. 
The  libel  consists  in  a  statement  in  their  annual  report  that 
there  is  due  from  L.,  as  tax  collector,  a  certain  sum.  The 
statement  is  incorrect,  as  shown  by  the  municipal  records. 
There  is  no  presumption  that  the  defendants  knew  this  to  be 
so.'  The  presumption  of  knowledge  of  law  may  be 
rebutted.  *'  For  instance,  if  there  be  an  intention  to  pass 
a  freehold  estate,  and  the  vendee  accepts  a  deed  of  feoffment 
•without  livery,  he  will  be  relieved  upon  the  ground  that  he 
was  under  a  mistake  as  to  the  law,  for  the  intention  being 
clear,  the  failure  to  effect  it  makes  the  mistake  manifest, 
and  rebuts  the  presumption.  It  is  different,  however, 
where  the  intention  is  carried  into  effect,  because  in  such 

1  Gauldin  v.  Shebce.  20  Ga.  531  (1856). 
»  Loomis  V.  Uiley,  24  111.  307  (18C0). 
'  Lnncey  v.  nryant,  30  Me.  4G6  (1819). 
«  Palmyra  v.  Morten.  25  Mo.  5'.i3  (1857). 
»  Hart  V.  Koper,  (3  Ired.  (Eq.)  349  (1849). 


14  PRESUMrrn'E  evidence.  [rule  2. 

cases  there  is  nothing  to  rebut  the  presumption,  and  the 
ignorance  of  the  party  can  only  be  shown  by  going  into 
proof,  which  is  not  admissible.^ 

RULE  2.  —  But  there  is  no  presumption  of  knowledge  cf 
private  or  foreigrn  laws. 

Illustrations. 

I.  B.  is  a  teacher  in  a  public  academy  and  expels  a  scholar  for  disobe- 
dience. The  by-laws  of  the  academy  provide  that  no  pupil  shall  be 
expelled  but  by  order  of  the  Board  of  Trustees.  There  is  no  presump- 
tion that  P.  knew  of  the  existence  of  this  by-law.* 

II.  A.  dies  in  Massachusetts  leaving  real  estate  there  and  in  New  York. 
His  heirs  are  a  niece,  a  child  of  one  of  his  sisters,  and  three  nephews, 
the  children  of  another  sister.  By  the  laws  of  Massachusetts,  the  four 
heirs  are  entitled  to  share  in  equal  propoi'tions,  but  by  the  laws  of  New 
York  the  niece  is  entitled  to  one-half  and  the  nephews  to  one-sixth.  The 
heirs  divide  the  New  York  property  equally  amongst  them,  but  afterward 
discovering  that  she  was  entitledtoalarger  share,  the  niece  brings  suit  to 
have  the  settlement  set  aside.  She  can  recover,  as  she  is  not  presumed  to 
know  the  law  of  New  York.' 

In  case  II.  it  was  said:  "  In  all  civil  and  criminal  pro- 
ceedings every  man  is  presumed  to  know  the  law  of  the 
land,  and  whenever  it  is  a  man's  duty  to  acquaint  himself 
with  facts,  he  shall  be  presumed  to  know  them.  But  this 
doctrine  does  not" apply  to  the  present  case.  It  was  not  the 
duty  of  the  plaintiff  to  know  the  laws  of  New  York,  nor 
does  ignorance  of  them  imply  negligence.  *  *  *  The 
parties  knew  in  fact  that  the  intestate  died  seized  of  estate 
situated  in  the  State  of  New  York.  They  must  be  pre- 
sumed to  know  that  the  distribution  of  that  estate  must  be 
governed  by  the  laws  of  New  York.  But  are  they  bound  at 
their  peril  to  know  what  the  provisions  of  these  laws  are? 
If  the  judicial  tribunals  are  not  presumed  to  know,  why 
should  private  citizens  be?     If  they  are  to  be  knoVn  to  the 

1  P.oyers  v.  Pratt,  1  Ilumph.  90  (1839). 
s  Iluvcn  V.  Foster,  9  Pick.  112  (182!)). 
8  King  V.  Doolitlle,  1  Head,  77  (1S58), 


RULE    3.]        THE   PRESmiPTION   OF   KNO^VLEDGE.  15 

court  by  proof  like  other  facts,  wliy  should  not  ignorance 
of  them  by  private  individuals  have  the  same  effect  upon 
their  acts  as  ignorance  of  other  facts?     Juris  ignoranlia 
est  cum  jus  nostiiim  ignoramus^  and   does  not  extend  to 
foreign  laws  or  the  statutes  of  other  States.     This  rule  does 
not  extend  to   special   or    private   laws   which    are    only 
intended  to  operate  on  particular  individuals,  as  for  example 
a  private  bank  charter.     Nor  does  it  extend  to  foreign  laws 
or  the  laws  of  other  States.^     *  In  some  cases,'  said  Mr. 
Justice  "Washington  in  an  early  case,    'a  foreigner  is  not 
bound  to  take  notice  of  foreign  revenue  laws.     For  if  he 
makes  a  firm  and  final  contract,  completed  in  his  own  or  a 
foreign  country,  it  is  nothing  to  hira  whether  a  use  may  or 
may  not  be  made  of  the  contract  in  violation  of  the  revenue 
laws  of  a  foreign   country.     In  the   case   of  HoJlman  v. 
t7o/mso?i,Hhe  sale  was  completed  in  France,  and  the  vendor 
was  in  no  respect   concerned  or   aiding   in  the  illicit   use 
intended  to  be  made  of  the  goods,  though  he  knew  of  such 
intention.     Not  so,  as  to  a  citizen  who  though  the  contract 
be  complete,  yet  if  he  be  knowingly  instrumental  to  a  broach 
of  the  laws  of  his  own  country  he  can  not  have  the  aid  of 
those  laws.     *     *     *     But  if  the  contract  of  the  foreigner 
is  to  be  completed  in  or  has  a  view  in  its  execution    in    a 
foreign  country,  he  is  bound  to  take  notice  of  them." 

IIULE  3. — Persons  engaged  in  a  particular  trade  are 
presumed  to  be  acquainted  Avitli  the  value  of  articles 
bought  and  sold  therein  (A),  the  names  under  which 
they  go  in  such  trade  (B),  and  the  general  customs 
obtaining  and  followed  there  (C). 

Illxistrations. 
A. 

I.  A  person  takes  some  bank  bills  to  a  banker  to  be  exchanged  forpoUl, 
and  the  banker,  after  examining  them  buys  them  from  him  at  a  dibcoimt. 

1  Cambiose  v.  Maffet,  2  Wash.  C.  C.  104  CISOT). 
>  Cowp.  341. 


16  PRESUMPTIVE   EVIDENCE.  [rULE    3. 

After'wards  discovering  that  one  of  the  bills  is  wortliless,  he  brings  an 
action  for  the  money  lie  paid  for  it.  He  can  not  recover,  there  being  no 
evidence  of  fraud  or  knowledge  on  the  customer's  part.  The  banker  is 
presumed  to  be  acquainted  with  the  value  of  the  bills  purchased  by  him.^ 

B. 

I.  D.  imports  into  New  York  a  quantity  of  spelter,  which  under  the 
name  of  tutenague  is  exempt  from  duty.  The  collector,  however, 
claims  and  receives  a  duty  of  20  per  cent  thereon,  and  subsequently  D. 
sells  the  spelter  to  M.  at  long  price,  which  by  custom  gives  a  purchaser 
the  right  to  any  drawback  on  duty  which  maybe  made.  Afterward  the 
collector  decides  that  spelter  is  not  dutiable,  and  pays  back  to  D.  the  20 
per  cent.  In  an  action  by  M.  claiming  this  duty  M.  can  not  recover, 
as  the  presumption  is  that  both  M.  and  D.  knew  at  the  time  of  the  sale 
that  the  article  was  not  dutiable.* 

*'  It  is  a  reasonable  presumption,"  it  was  said  in  case  I., 
*'  that  those  who  are  dealing  in  articles  of  commerce, 
especially  those  who  purchase  by  wholesale  from  the 
importers,  are  acquainted  with  the  different  names  by  which 
such  articles  are  known  to  the  commercial  world.  And  if 
spelter  was  actually  exempted  from  duty  by  the  names  used 
in  the  section  of  the  statute  relative  to  exempt  articles, 
probably  both  parties  to  this  sale  had  reason  for  believing 
that  the  claim  made  by  the  collector  was  unfounded  and 
that  it  would  probably  be  reversed,  and  the  duties  be 
refunded  to  the  importer.  If  so,  the  purchaser  should  have 
made  his  contract  with  reference  to  that  event,  so  as  to 
secure  for  himself  the  benefit  of  the  refunded  duty  in  case 
it  should  turn  out  that  the  collector  was  wrong." 

C. 

I.  A.  employs  B.,  a  broker,  to  trade  for  him  on  the  Stock  Exchange, 
The  general  rules  of  the  Exchange  are  presumed  to  be  known  to  A.,  and 
B.  has  an  implied  authority  to  contract  in  accordance  therewith.* 

n.  It  is  the  general  custom  in  a  certain  trade  to  charge  interest  on 
accounts  after  a  fixed  time.  Parties  dealing  therein  are  presumed  to  be 
cognizant  of  this  custom,  and  are  bound  by  it.* 

1  Hinckley  t>.  Ker8ting,21  III.  247  (1859), 

»  Moore  v.  Des  Arts,  2  Karb.  Ch.  636  (l&iS). 

»  Sutton  V.  Tatham,  10  Ad.  &  Ell.  27  ;  Bayliffe  v.  Butterworth,  1  Ex.  25. 

*  McAJister  v.  Reab,  4  Wend.  483,  8  Id.  lO'J;  Meech  v.  Smith,  7  Id.  315. 


KULE    3.]        THE   rHESmiPTIOX   OF   K^O^^'LEDGE.  17 

in.  It  is  the  general  custom  of  a  bank  to  demand  payment  of  notes 
and  give  notice  on  tlie  fourth  instead  of  the  tliird  day  after  they  are  due. 
Persons  negotiating  notes  at  this  bank,  or  making  coniuiercial  paper  for 
the  purpose  of  having  it  negotiated  there,  are  presumed  to  know  this 
custom. 1 

IV.  A  dry  goods  salesman  sues  B.,  his  employer,  for  wrongful  dismis- 
sal. There  is  a  general  custom  in  the  dry  goods  trade,  that  when  a  clerk 
or  salesman  begins  a  season  wltliout  a  special  contract,  he  can  not  be  dis- 
missed until  the  end  of  it.  Both  A.  and  B.  are  presumed  to  know  this 
custom.* 


All  trades  have  their  usages,  and  when  a  contract  is  made 
with  a  man  about  the  business  of  his  craft,  it  is  framed  on 
the  basis  of  such  usage,  which  becomes  a  part  of  it,  unless 
there  is  an  express  stipulation  to  the  contrary.' 

In  case  I.  it  was  said:  "A  person  who  deals  in  a  particu- 
lar market  must  be  taken  to  deal  according  to  the  custom 
of  that  market,  and  he  who  directs  another  to  make  a  con- 
tract at  a  particular  place  must  be  taken  as  intending  that 
the  contract  may  be  made  according  to  the  usage  of  that 
trade." 

In  case  II.  it  was  said:  '*  The  uniform  custom  of  a  mer- 
chant or  manufacturer  is  presumed  to  be  known  to  those  in 
the  habit  of  dealing  with  hira,  and  in  their  dealings  they 
are  supposed  to  act  in  reference  to  that  custom." 

In  case  III.  it  was  said:  *'  The  parties  are  bound  by  such 
usage  whether  they  have  a  personal  knowledge  of  it  or  not. 


1  Mills  r.  Bank  of  U.  S.,  11  Wheat.  431;  Renner  v.  Bank  of  Colnmbia,  9  Id.  582; 
Bank  of  Washington  v.  Triplctt,  1  Tet.  25;  Ycalon  v.  Bank  of  Alexandria,  5  Cranch, 
9;  Smith  v.  Whiting,  12  Mass.  6;  Dorchester,  etc.,  Bank  r.  Kew  England  Bank,  1 
Cush.  177. 

«  Given  V.  Charron,  15  Md.  502,  and  see  Lyon  r.  George,  44  Md.  295. 

8  Pittsburg  r.  O'Xeil,  1  I'eun.  St.  34.5;  Riudskoff  v.  Barrett,  14  Iowa,  101;  Beatty 
V.  Grcgorj-,  17  Id.  109;  Toledo,  etc.,  Insurance  Uo.  v.  Speares,  16  lud.  52;  Grant  v. 
Lcxinirtoti  Fire  Insurance  Co. ,5  Id.2",;  Barrett  r.  Williamson, 4  McLean, 589; Greaves 
V.  Legg,  11  Ex.  642;  2  II.  &X.  210.  lu  a  New  York  case  Folger,  J.,  said:  "There  are 
cases  of  principal  and  agent  where  one  has  been  sent  by  another  to  do  acts  in  a 
particular  business  to  be  done  at  a  particular  locality— as  on  Stock  Exchange  — 
where  the  power  to  deal  is  a  privilege  obtained  by  the  payment  of  a  fee,  and  is 
restricted  to  a  body  which  has  for  its  regulation  and  government  come  under  certain 
prescribed  rules  or  established  usages ;  and  as  the  agent  could  not  do  the  will  of  his 
principalnor  could  the  principal  himself,  save  in  conformity  with  those  rules  or 
usages,  it  is  held  that  the  principal  must  be  bound  thereby,  whether  cognizant  of 
them  or  not,  and  that  ignorance  will  uot  excuse  him."    Walls  v.  Bailey,  49  X.  Y.  464 


18  PEESmiPTIVE   EVIDENCE.  [llULE    4. 

In  the  case  of  such  a  note  the  parties  are  presumed  by 
implication  to  agree  to  be  bound  by  the  usage  of  the  bank 
at  Avhich  they  have  chosen  to  make  the  security  itself  nego- 
tiable." It  must  be  borne  in  mind,  however,  that  this 
knowledge  is  presumed  only  where  the  custom  is  a  general 
and  notorious  one.  A  local,  special  custom  in  a  particular 
trade  is  not  presumed  to  be  known  even  to  persons  doing 
business  therein.^ 

RULE  4 .  —  The  contents  of  a  writing  signed  by  a  party 
liimself ,  or  by  another  at  his  request,  are  presumed 
to  be  knoAvn  to  him  (A),  and  so  of  a  i>aper  drav^Ti  up 
by  one  for  another  (B),  and  the  matters  ref eri*ed  to  in 
such  writing  (C). 

Illvstrations. 

A. 

I.  An  action  is  brought  against  F.  on  a  written  contract.  S.  testifies 
that  he  signed  it  at  F.'s  request  for  him,  as  F.  could  not  write,  but  he 
does  not  remember  whetlier  or  not  the  contents  were  read  over  or 
explained  to  F.    The  presumption  is  that  F.  knew  the  contents.^ 

II.  A.  signs  an  agreement  to  talie  shares  in  a  projected  railroad,  think- 
ing that  he  would  not  be  called  on  to  pay  until  the  road  was  completed. 
Afterwards  he  finds  out  that  the  agreement  calls  for  paj'ment  at  once. 
In  an  action  against  him  A.  is  presumed  to  have  been  acquainted  with 
the  contents  of  the  paper.* 

III.  A.  signs  a  promissory  note  which  has  no  date,  the  payee  afterwards 
filling  in  a  date  prior  to  the  time  of  A.'s  signing.  The  presumption  is 
that  A.  knew  that  the  note  was  not  dated.* 

IV.  A.  signs  a  will  with  his  mark.  The  presumption  is  that  A.  knows 
its  contents.^ 


1  Miller  v.  Bwrke,  68  K.  T.  625;  Flynn  v.  Murphy,  2  E.  T>.  Smith,  378;  Farmers, 
etc.,  Bank  v.  Sprague,  62  N.  Y.  605;  Pierpont  v.  Fowle,  2  Woodb.  &  M.  23;  Smith  v. 
Gibbs,  44  N.  11.  335. 

Harris  v.  Story,  2  E.  D.  Smith,  363  (1S54). 

3  Clem  V.  R.  Co.,  9  Ind.  4S9  (18.57), 

*  Androscoggin  Bank  v.  Kimball,  10  Cush.  374  (1852). 

6  Doran  v.  Jliillen,  78  111.  ."12  c1S7.j).  Signing  a  paper  as  a  witness  creates  no  pre- 
sumption that  he  knew  its  contents.    Hill  v.  Johnston,  3  Ired.  (Eq.)  432  (1S44). 


KULK  4.]      THE  rriESUMmoN  of  knowledge.  19 

In  case  IV.  it  was  said:  "  The  M'ill  is  found  with  lii.s  si^:- 
nature  to  it,  and  the  presumption  is  that  lie  did  not  sign  it 
without  knowing  its  contents.  Such  is  the  usual  presump- 
tion in  reference  to  all  instruments,  and  we  are  aware  of  no 
distinction  between  persons  who  can  and  who  can  not  write." 

(B.) 

I.  A.,  an  attorney,  has  a  claim  against  B.  for  professional  services. 
B.  afterward  forms  a  partnership  witli  C,  A.  drawiu;^  up  tlie  articles. 
A.  afterward  brings  suit  on  the  claim  against  the  firm.  A.  is  presumed 
to  know  tlie  terms  of  the  partnership  between  B.  and  C.^ 

II.  A.  is  the  payee  of  a  promissory  note  signed  by  B.  and  C.  A.  is  pre- 
sumed to  know  the  relation  of  the  parties  to  the  note,  as  that  C.  signed 
simply  as  surety.- 

(C.) 

I.  An  assignment  is  made  of  a  patent  for  an  "  horological  cradle,"  the 
date  of  the  patent  being  recited  in  the  deed.  In  an  action  on  a  note  given 
for  purchase-money,  it  turns  out  that  the  patent  is  not  for  an  "horologi- 
cal cradle,"  but  only  for  an  ornament  for  a  such  a  machine.  The  pre- 
sumption is  that  purchaser  exaniiued  the  patent  and  knew  this.^ 

In  case  I.  it  was  said:  "  The  assignments  refer  specific- 
ally to  the  patent  by  date,  and  it  may  not  be  a  very  violent 
presumption  to  suppose  that  the  purchasers  examined  it  to 
see  what  they  were  buying.  Should  I  buy  a  piece  of  land 
of  a  party  by  some  general  descri[)tion,  which,  without 
some  reference  to  something  else,  would  be  unintelligible, 
but  in  my  deed  reference  is  made  to  the  original  patent  by 
which  it  Avas  conveyed  by  the  government  to  my  grantor, 
the  description  would  become  as  certain,  definite  and  satis- 
factory as  if  that  description  were  coi)ied  into  my  deed, 
and  nothing  short  of  positive  proof  of  a  fraud,  or  clear 
mistake,  would  remove  the  presunjption  that  I  had  exam- 
ined or  understood  the  contents  of  the  patent." 


1  Burrctt  v.  Dickson,  8  Cal.  113  (1857). 
-  Ward  v.  Stout,  32  111.  3'J9  flSCS). 
8  Myers  v.  Turner,  IT  111.  17'J  (1855). 


20  PRESUMPTIVE   EVIDENCE.  [rULE    5. 

EULiE  3.  — Tlie  burden  of  proof  is  on  the  party  to  sliow 
a  material  fact  of  wliicli  lie  is  best  cognizant.^ 

Illustrations. 

I.  A  suit  is  brought  by  R.  and  S.  as  partners  in  the  firm  of  R.  B.  & 
Co..  The  defendant  alleges  that  all  the  partners  in  the  firm  have  not 
been  joined.     The  burden  is  on  the  plaintiff  to  show  that  they  have.* 

II.  A.  after  coming  of  age  settles  with  his  guardian  and  receives 
money  in  the  hands  of  his  guardian  derived  from  the  sale  of  real  estate. 
The  presumption  is  that  he  received  this  money  with  knowledge  of 
whence  it  came.^ 

III.  There  is  an  old  well  on  C.'s  premises  into  which  the  horse  of  N. 
falls,  and  is  killed.  It  is  covered  with  weeds  and  grass  so  as  to  be 
unseen.     The  presumption  is  that  C.  knows  it  is  there.* 

IV.  An  action  is  brought  against  B.  for  marrying  a  minor  without  the 
consent  of  her  parent  or  guardian.  The  burden  is  on  B.  to  show  this 
consent.* 

V.  A  statute  prohibits  the  sale  of  liquor  except  for  certain  purposes. 
B.  is  charged  with  selling  liquor.  The  burden  is  on  B.  to  show  that  the 
liquor  sold  was  sold  for  the  excepted  purposes.^ 

VI.  A  statute  requires  railroad  companies  to  fence  their  tracks  except 
where  the  owners  of  the  adjoining  lands  have  fenced  or  agreed  with  the 
company  to  do  so.  A  railroad  company  is  sued  for  negligence  in  killing 
stock  on  an  unfenced  part  of  their  line.  Their  defense  is  that  thty  were 
not  required  to  fence  as  the  owner  of  the  land  had  agreed  to.  The  pre- 
sumption is  that  there  was  no  such  contract  and  the  burden  is  on  the 
railroad  to  prove  it.^ 

"  It  is  the  opinion  of  the  court/'  it  was  said  in  case  I., 
"  that  the  onus  probandi  was  on  the  plaintiff  to  establish  the 
fact  that  they  alone  composed  the  firm  of  R.  B.  &  Co. 
because  the  name  of  B.  used  in  the  sign  of  the  firm  implied 
that  he  was  a  real  person,  and  a  partner  in  interest  in  the 

1  Ford  V.  Simmons,  13  La.  Ann.  397  (1S5S). 

2  Hugely  «.  Gill,  15  La.  Ann.  509  (18(iO),  and  see  Bowman  v.  McElroy,  15  Id.  903 
(18(i0). 

2  Corwin  v.  Shoup,  76  111.  246  (1875). 

*  Nelson  V.  Central  II.  Co.,  48  Ga.  152  (1873). 

b  Medloc.k  v.  Crown,  4  Mo.  379  (183(i). 

«  llacbaugh  v.  City  of  Monmouth,  74  111.  367  (1874).  So  a  party  indicted  for  sell- 
ing  liquor  without  a  license  must  show  that  he  had  a  license.  Bliss  v.  Brainard,  41 
X.II.  256  (ISRO) ,  State  v.  Foster,  23  X.  H.  348  (1851). 

'  Great  Western  R.  Co.  v.  Bacon,  30  111.  347  (1863). 


RULE    5.]        THE   niEStrMPTIOX   OF   KNOWLEDGE.  21 

concern;  and  if  so  ho  should  have  been  joincsd  as  a  party 
plaintiff  in  the  action.  But  if  the  name  of  B.  in  the  style 
of  the  firm  were  a  mere  fiction,  then  the  fact  should  have 
been  proved  by  the  plaintiffs,  because  they  were  not  only 
more  cognizant  of  the  fact,  but  the  evidence  of  it,  perhaps, 
was  in  their  exclusive  possession.  The  burden  of  proof  is 
on  the  party  who  has  to  support  his  case  by  proof  of  a  fact 
of  which  he  is  supposed  to  be  the  most  cognizant." 

In  case  III.  it  was  said:  "The  presumption  of  law  is 
that  the  owner  of  the  lot  knew  that  the  well  was  on  it;  as 
the  owner  when  in  possession  is  presumed  to  know  the  con- 
dition of  his  own  property,  if  a  natural  person,  or  by  its 
agents  or  employes,  if  an  artificial  one." 

In  case  VI.  it  was  said:  "  This  'count  is  on  the  statute 
which  requires  the  railroad  company  to  fence  its  road  where 
it  runs  through  enclosed  lands,  except  where  it  is  fenced  by 
the  proprietor,  or  where  the  company  has  a  contract  with 
the  proprietor  of  the  lands  that  he  shall  fence  the  road. 
The  mule  was  killed  by  a  train  on  the  defendant's  road,  at 
a  place  where  it  passes  through  enclosed  grounds,  and 
where  it  is  not  fenced,  and  the  only  question  is,  whether  it 
was  the  duty  of  the  plaintiff  to  prove  that  there  was  no 
contract  between  the  company  and  the  proprietor  of  the 
land  that  he  should  fence  the  road.  The  statute  requires, 
in  general  terms,  all  railroad  companies  to  fence  their  roads, 
and  then  makes  several  exceptions,  one  of  which  is  when 
it  runs  through  enclosed  lands,  the  proprietor  of  which  has 
agreed  to  fence  it.  "We  have  repeatedly  held  that  it  is 
necessary,  in  pleading,  to  negative  all  these  exceptions. 
Whether  it  is  necessary  for  the  plaintiff  to  prove  these 
negative  averments,  must  depend  upon  their  nature  and 
character.  AVhen  it  is  as  easy  for  the  plaintiff  to  prove  t'lo 
neirative  as  it  is  for  the  defendant  to  disprove  it,  then  the 
burden  of  proof  must  rest  upon  him,  as  that  the  place 
where  the  animal  was  killed  was  in  a  town  or  village, 
or  Avas  not  more  than  five  miles  from  a  settlement  ;  but 
where  the  means  of  ))rovin^  the  neirative  are  not  M'ithiu  tlic 

1  o  o 


22  PRESUMPTIVE    EA'IDENCE.  [rULE    5. 

power  of  the  plaintiff,  but  all  the  proof  on  the  subject  is 
■within  the  control  of  the  defendant,  who,  if  the  negative  is 
not  true,  can  disprove  it  at  once,  then  the  law  presumes  the 
truth  of  the  negative  averment,  from  the  fact  that  the 
defendant  withholds  or  does  not  produce  the  proof,  which 
is  in  his  hands  if  it  exists,  that  the  negative  is  not  true.  In 
other  words,  the  burden  of  proof  is  thrown  upon  the 
defendant  to  prove  the  affirmative  against  the  negative 
averment.  There  are  cases  between  these  extremes,  where 
the  party  averring  a  negative,  is  required  to  give  some 
proof  to  establish  it.  Indeed,  it  is  not  easy  to  lay  down 
a  general  rule  by  which  it  may  be  readily  determined,  upon 
which  party  the  burden  of  proof  lies,  when  a  negative  is 
averred  in  pleading.  "Each  case  may  depend  upon  its 
peculiar  characteristics,  and  courts  must  apply  practical 
common  sense  in  determining  the  question.  When  the 
means  of  proving  the  fact  are  equally  within  the  control  of 
each  party,  then  the  burden  of  proof  is  upon  the  party 
averring  the  negative  ;  but  when  the  opposite  party  must, 
from  the  nature  of  the  case,  be  in  possession  of  full  and 
plenary  proof  to  disprove  the  negative  averment,  and  the 
other  party  is  not  in  possession  of  such  proof,  then  it  is 
manifestly  just  and  reasonable  that  the  party  thus  in  posses- 
sion of  the  proof  should  be  required  to  adduce  it,  or  upon 
his  failure  to  do  so,  we  must  presume  it  does  not  exist, 
v/hich  of  itself  establishes  the  negative.  Such  is  the  case 
here.  If  the  railroad  company  has  a  contract  with  the 
proprietor  of  this  land  that  he  shall  fence  it,  it  is  no  trouble 
to  produce  it,  and  thus  exonerate  itself  from  the  liability 
to  build  the  fence.  If  the  defendant  does  not  produce 
such  a  contract  the  presumption  is  that  none  exists." 

"Where  a  party  asks  equitable  relief  on  certain  facts, 
and  the  defendant  answers  that  he  has  no  knowledge  of 
such  facts,  the  complainant  must  prove  them;  ^  and  where 
a  party  seeks  to  avoid  the  effect  of  a  promise  made  by  him 

1  Haley  v.  Lacey,  1  Sawn.,  408  (1852), 


RULE    7.]        THE   rRESUMPTIOX    OF    KNOWLEDGE.  23 

on  the  ground  that  he  was  is^norant  of  material  facts  the 
burden  is  on  him  to  show  this.^  > 

RULE  G.  — The  burden  of  proof  of  notice  to  a  bona  fide 
purchaser  is  on  the  person  allcgiu{?  such  notice. 

Illustrations. 

I.  P.  employs  V.  as  agent  to  build  a  vessel  for  him,  furnishes  him  with 
funds  therefor,  but  instructs  him  to  conceal  his,  P.'s,  ownership.  V. 
makes  the  contracts  in  his  own  name,  and  registers  the  vessel  as  his  own. 
"When  it  is  completed  he  sells  it  to  C.  and  pockets  the  purchase-money.  In 
an  action  by  P.  against  C.  the  burden  of  proving  that  C.  had  notice  of  P.  's 
rights  is  upon  P.* 

RULE  7.  —  There  is  no  presumption  that  a  person  not 
called  as  a  witness  has  any  knowledge  of  facts. 

Illustrations. 

I.  In  an  action  at  law,  one  B.,  whose  name  is  mentioned  by  witnesses  In 
the  cause  of  the  trial,  is  not  produced  as  a  witness.  The  jury  have  no 
right  to  presume  any  thing  as  to  his  knowledge  of  any  facts  important  to 
the  case.' 

In  case  I.  it  was  said  :  *'  The  circumstance  that  a  particu- 
lar person  who  is  equally  within  the  control  of  both  parties 
is  not  called  as  a  witness  is  too  often  made  the  subject  of 
comment  before  the  jury.  Such  a  fact  lays  no  ground  for 
any  presumption  against  either  party.  If  the  witness  would 
aid  either  party,  such  party  would  probably  produce  him. 
As  He  is  not  produced  the  jury  have  no  right  to  presume 
anything  in  respect  to  his  knowledge  of  any  facts  in  the 
case,  because  they  are  to  try  the  case  upon  the  facts  shown 
in  evidence,  and  upon  them  alone,  without  attempting  to 
guess  at  what  might  bo  shown,  if  particular  persons  were 
produced  by  the  parties." 

>  Burton  r.  Blin,  23  Vt.  152  (1851). 

»  Calais  Steamboat  Co.  r.  Van  Pelt,  2  Black,  273  (1862J 

«  Scovill  V.  Baldwin,  27  Conn.  317  (1S58). 


itf  ■ 


PART  11. 

THE  PRESUMPTIONS  OF  REGULARITY 
AND  INNOCENCE. 


(25) 


I 


CIIAPTEE    II. 

THE  REGULARITY   OF  JUDICIAL  ACTS. 

RULE  8. — Where  a  court  having  general  jurisdiction  acts 
in  a  case,  its  jurisdiction  to  so  act  will  be  presumed.^ 

Illiistrations. 

I.  In  a  suit  in  a  court  of  chancery,  a  grant  of  administration  by  a  pro- 
bate court  was  objucttd  to  a.s  invalid.  Tlie  order  of  this  court  granting 
letters  of  administration  did  not  show  tliat  the  decedent  died  intestate, 
or  that  his  last  residence  was  in  the  county  in  which  the  grant  was  made. 
These  requisites  to  the  jurisdiction  of  the  court  will  be  presumed.- 

Li  case  I.  it  was  said:  "  Our  courts  of  probate  are  not 
inferior  in  the  technical  sense  of  that  term,  as  used  of 
the  subject  at  common  law,  nor  is  this  jurisdiction  special 
and  limited;  on  the  contrary  it  is  general,  original,  and 
exclusive.  In  the  exercise  of  such  a  jurisdiction,  these 
courts  are  entitled  to  the  presumption  that  what  they  do  is 
rightly  done  and  on  just  grounds." 

RULE  9. — But  where  the  proceedings  are  taken  by 
an  inferior  court  (A),  or  are  under  a  special  author- 
ity granted  to  any  tribunal  in  a  special  case  or  for 
special  purposes  (B),  or  are  not  according  to  the  course 
of  the  common  law  (C),  the  jurisdiction  is  not  pre- 
sumed but  must  be  shown.' 

Nothing  shall  be  intended  to  be  out  of  the  jurisdiction  of 

1  Maikel  v.  Evans,  47  Ini.  326  (IS74) ;  Butcher  v.  Bank  of  Brownesville,  2  K.is.  80 
(18fi:5) ;  State  v.  Levvis,  '21  N.  J.  (L.)  5(!l  (1S4S) ;  Railway  Co.  v.  Uumsay.  2-2  Wall.  3"22 
(1S74; ;  Palmer V.  Oakley,  2  Doug.  (Mich  )  47;  47  Am.  Dec.  1  (1S47) ;  Horner  v.  State 
r.k.,  1  Ind.  130;  4S  Am.  Dec.  355  (l&tS) ;  Mechanics',  etc.,  Bk.  f.  Union  Bank,  22  Wall. 
276  (1874) ;  Davis  v.  Hudson,  29  Minn.  28  (ISSl) ;  Reed  v.  Vanphan,  15  Mo.  141  (18.51) ; 
Hays  V.  Ford,  55  Ind.  52  (1876) ;  llahu  v.  Kelly,  34  Cal.  400  (1868) ;  Wallace  r.  Cox,  71 
111.518(1874). 

-  Rrien  ti.  Ilart,  6  Humph.  i:U  (1845) ;  and  see  Kilciease  r.  Blythe,  6  Id.  379 
(1S45). 

^  Thatcherr.  Powell,  6  Wheat.  127;  Kempe  r.  Kennedy,  5  Cranch,  173;  Jackson  v. 
Xew  Milford  Briiigo  Co.,  .-54  Conn.  266  (lsfi7) ;  Pclton  f.  Palmer,  13  Ohio,  209  (1846)  i 
Goulding  v.  Clark,  34  X.  II.  143  (1856) ;  Palmer  v.  Oakley,  ante. 

(27) 


28  PEESUaiPTIVE   EVIDEXCE.  [rULE    0. 

a  superior  court,  but  that  which  specially  appears  to  bo  so, 
and  nothing  will  be  presumed  to  be  withiii  the  jurisdiction 
of  inferior  courts,  but  that  which  is  expressly  alleged.^  "  It 
is  a  general  rule,"  said  Wightman,  J.,  <'  that  all  judicial  acts 
exercised  by  persons  whose  judical  authority  is  limited  as 
to  locality  must  appear  to  be  done  within  the  locality  to 
which  the  authority  is  limited."  ^ 

"It  is  undoubtedly  true,"  say  the  Supreme  Court  of  the 
United  States  in  Galpin  v.  Page,^  "  that  a  superior  court  of 
general  jurisdiction,  proceeding  within  the  general  scope  of 
its  powers,  is  presumed  to  act  rightly ;  all  intendments  of  law 
in  such  cases  are  in  favor  of  its  acts.  It  is  presumed  to 
have  jurisdiction  to  give  the  judgments  it  renders  until  the 
contrary  appears ;  and  this  presumption  embraces  jurisdic- 
tion not  only  of  the  cause  or  subject-matter  of  the  action  in 
which  the  judgment  is  given,  but  of  the  parties  also.  The 
former  will  generally  appear  from  the  character  of  the 
judgment,  and  will  be  determined  by  the  law  creating  the 
court  or  prescribing  its  general  powers.  The  latter  should 
regularly  appear  by  evidence  in  the  record  of  service  of 
process  upon  the  defendant  or  his  appearance  in  the  action. 
But  when  the  former  exists  the  latter  will  be  presumed. 
This  is  familiar  law  and  is  asserted  by  all  the  adjudged  cases. 
The  rale  is  different  with  respect  to  courts  of  special  and 
limited  authority;  as  to  them  there  is  no  presumption  of 
law  in  favor  of  their  jurisdiction  ;  that  must  affirmatively 
appear  by  sufficient  evidence  or  proper  averment  in  the 
record,  or  their  judgments  will  be  deemed  void  on  their 
face." 


1  Peacock  v.  Bell,  1  Saund.  74. 

2  R  V.  Totness,  11  (J.  15.  80  (1849);  Dempster  v.  Parnell,  4  Scott,  N.  R.  30  (1S41); 
King  V.  Fell,  1  Bald.  3S6  (1S30) ;  Swain  v.  Chase,  12Cal.  283  (1859) ;  Bosworth  v.  Van- 
dewalker,  53  N.  Y.  597  (1873) ;  Spear  v.  Carter,  1  Mich.  19;  48  Am.  Dec.  683  (1817) ; 
McClure  v.  Hill,  36  Ark.  273  (1880) ;  Keep  v.  Grannis,  3  Nev.  .548  (1867).  In  R.  v.  GourhCi 
2  Salk.  441,  the  Court  of  King's  Bench  ruled  that  the  jurisdiction  of  magistrates 
would  be  presumed  until  the  contrary  was  shown.  A  different  conclusion  was 
reached  inR.  r.  Helling,  1  Strange,  7,  decided  in  1780.  The  latter  ruling  was  affirmed 
by  Lord  Kcnyon  in  King  v.  Inliabitants  of  Hulcott,  G  T.  li.  585,  in  the  year  17'JU,  after 
a  review  of  all  tiie  earlier  authorities. 

«  18  Wall.  364  (1873). 


RULE    D.]  lIEGULAniTV    OF    JUDICIAL    ACTS.  29 

Tho  meaning  of  "  inferior  court "  in  the  above  rule,  is 
not,  as  will  have  been  observed  from  tiie  language  just 
(juoted,  tho  broad  meaning  wiiieh  (his  phrase  sometimes 
bears.  By  an  "  inferior  court,"  is  meant  one  with  only 
Imiitcd  jurisdiction ;  a  court  with  general  jurisdiction  is  not 
an  "  inferior  court  "  within  the  rule,  because  an  appeal  may 
lie  from  its  decision  to  a  higher  tribunal.  In  the  appellate 
court  the  presumi)tion  always  is  that  the  court  from  which 
the  ai)pcal  is  taUen  has  not  erred,  and  this  presumption 
must  be  removed  by  proof  before  the  court  will  reverse  the 
proceedings  below. ^  "A  revisory  court  never  presumes 
that  an  inferior  tribunal  has  erred.  The  presumption  is 
that  it  has  not.  Until  the  contrary  is  shown  by  recoixl 
every  court  is  presumed  to  have  acted  and  decided  cor- 
rectly." ^  As  superior  courts  within  rule  I.  are  included, 
all  courts  of  the  common  law  and  created  by  statute  having 
general  common-law  jurisdiction;  also  a  court  Palatine  of  a 
county,^  a  court  of  chanceiy,'*  court  of  probate,^  a  county 
court  in  Illinois.®  On  the  other  hand  these  are  inferior 
courts  within  the  rule,  viz.  :  a  justice  of  the  pcace,^  a  mag- 
istrate whose  authority  is  restricted  by  locality,^  a  county 
court  in  Iowa.* 

In  a  Connecticut  case'"  it  is  said  :  "  If  by  a  court  of  gen- 
eral jurisdiction  is  meant  one  of  unlimited  powers,  then  we 
have  none  such  in  this  State  nor  do  we  know  of  any  else- 
where. And  if  by  d  court  of  limited  jurisdiction  is  meant 
one  whose  powers  are  subordinate  to  some  other  court,  then 
all  but  courts  of  denier  resort  are  of  this  character.  Such 
is  not  the  sense  in  Avhich  this  subject  has  been  understood 

1  State  V.  Farish,  23  Miss.  4S3  (18,'i2). 

«  Wagers  V.  Dickey,  17  Ohio,  4:;u  (1813) ;  Coil  v.  Willis,  18 /d.  28  (1840). 
»  Peacock  v.  r.ell,  1  Sauiul.  74. 

*  Hopiierr.  Fisher,  2  Head,  2j8  (ISriS) ;  Kilcrease  v.  Blrthe,  6  Humph.  379  (1845). 
6  Bricn  v.  Hart,  6  Ilumiih.  131  (1S45) ;  Ueilmoud  r.  Andersou,  18  Ark.  449  (18.57). 
e  People  f.  Cole,  84  III.  .327  (lS7fi). 

'  Swain  V.  Chase,  12  Cal.  283  (1859) ;  Van  Eltten  v.  Jilson,  C  Id.  19;  Whitewell  r. 
Barbour,  7  Id.Q^. 

8  II.  V.  Totness,!!  Q.  B.80  (1849) ;  R.  v.  Bloomsbury,  4  El.  &  B.  520  (lSo4). 
«  County  of  Mills  r.  Ilaniaker,  11  Iowa,  206  (18C0). 
i**  Fox  V.  Hoyt,  12  Couu.  491 ;  31  Am.  Dec.  763  (1838). 


30  PRESUMPTIVE    EVIDENCE.  [rULE    9. 

either  in  England  or  in  this  country.  ^Yo  think  that  a  court 
of  record  proceeding  according  to  the  common  hi w  of  the 
hind,  and  whose  judgments  maybe  revised  by  writ  of  error 
is  a  court  whose  proceedings  and  judgments  impart  verity 
and  until  reversed  will  protect  all  who  obey  them,  and  in 
this  respect  there  is  in  this  State  no  distinction  between 
courts  of  justices  of  the  peace  and  the  county  and  superior 
courts.  In  this  sense  the  courts  of  common  pleas  of  Kew 
Jersey,  Massachusetts,  Vermont  and  Ohio  have  been  con- 
sidered as  courts  of  general  jurisdiction.^  Between  all 
these  courts  and  mere  special  tribunals,  such  as  commis- 
sioners on  insolvent  estates,  committees,  military  tribunals 
and  many  others  which  are  not  courts  of  record  and  are 
established  for  some  special  and  perhaps  temporary  pur- 
pose, there  exists  a  very  marked  distinction  in  regard  to 
the  credit  and  sanction  to  which  their  proceedings  are 
entitled  and  the  immunities  which  may  be  claimed  by 
themselves,  and  such  as  act  under  them." 

Illustratio7is. 


I.  A  statute  gives  justices  of  llie  peace  power  to  talvo  the  examination 
of  a  soldier  quartered  in  tlie  place  wliere  tlie  examination  is  talven.  Au 
examination  of  a  soldier  taken  before  two  magistrates  is  offered  in  evi- 
dence, but  it  does  not  show  where  the  soldier  was  quartered  at  the  time. 
There  is  no  presumption  that  he  was  quartered  at  the  place  where  the 
examination  was  taken,  and  it  is  admissible.^ 

"  The  rule,"  said  Holroyd,  J.,  in  case  I.,  "  that  in  infe- 
rior courts  and  proceedings  by  magistrates,  the  maxim 
omnia  prcesiimuntur  7'ite  esse  acta  docs  not  apply  to  give 
jurisdiction  has  never  been  questioned.  Here  then  the 
jurisdiction  should  at  all  events  have  appeared  on  the  face 


1  Citing  Kempe  v.  Kennedy,  5  Cranch,  173;  Wheeler  v.  Raymond,  8  Cow.  311 ;  Har- 
rod  V.  Karretto,  1  Hall,  155;  Watkin'sCase,  3  Pet.  103;  Voorhces  r.  U.  S.  Bank,  10  Pet. 
474;  Hettsr.  P.agley,  13  Pick.  672;  Foot  v.  Stevens,  17  Wend.  483;  Watson  v.  Watson, 
9  Conn.  144  ;  Uall  r    Ilowd,  10  Conn.  514. 

2  King  V.  Inhabitants  of  All  Saints.  7  B.  &  C.  783  (1S2S). 


RULE    9.]  REGULARIXr   OF   JUDICIAL   ACTS.  31 

of   the  examination,  supposing  proof   of  it  aliunde  not  to 
have  been  necessary." 

B. 

I.  A  statute  gives  to  county  courts  power  to  order  the  sale  or  parti- 
tion of  real  estate  of  an  intestate  where  tlie  heirs  can  not  agree  upon  a 
division  or  one  of  tliera  is  a  minor.  Under  this  law  a  county  court  par- 
titions certain  land.  Its  act  is  attaclced.  There  is  no  presumption 
that  everything  necessary  to  the  validity  of  the  judicial  act  has  l;een  doue.^ 

II.  A  statute  provides  that  a  magistrate  shell  have  power  to  call  a 
meeting  of  a  corporation  upon  the  petition  of  three  or  more  proprietors 
owning  one-twentieth  of  a  property.  There  is  no  presumption  that  such 
a  meeting  called  by  a  magistrate  was  done  on  the  petition  of  such  pro- 
prietors. 

III.  By  the  law  of  New  Jersey  the  acknowledgment  of  a  deed  of  lands 
lying  in  the  State  can  be  taken  in  another  State,  only  where  the  grantor 
whose  acknowledgment  is  taken  resides  in  such  State,  A  deed  of  lands 
in  New  Jersey  is  acknowledged  before  a  commissioner  in  New  York. 
There  is  no  presumption  that  the  grantor  resided  at  the  time  in  New 
York.s 

IV.  The  Board  of  Aldermen  of  a  city  are  constituted  by  statute  a  court 
for  the  purpose  of  trying  a  city  officer  on  charges  preferred.  The  statute 
requires  the  aldermen  to  be  duly  sworn  as  such  court.  In  a  proceeding 
to  set  aside  their  finding,  there  is  no  presumption  that  they  were  sworn.* 

In  case  I.  it  was  said  :  *'  It  is  an  important  question  in 
this  cause  whether  the  proceedings  of  this  court  upon  apeti- 
tion  to  divide  the  real  estate  of  an  intestate  under  the  act  be 
proceedings  under  a  special  authority  delegated  to  this  court 
in  a  particular  case  or  whether  they  be  proceedings  under 
its  general  and  ordinary  jurisdiction,  as  a  court  of  law  or  a 
court  of  equity.  If  the  latter  be  the  case,  many  things  may 
be  presumed  which  do  not  appear  on  the  record  nor  in  the 
evidence  produced ;  nor  will  evidence  be  permitted  to  con- 
tradict the  presumption  arising  from  the  acts  of  the  court  as 
they  appear   upon   the    record.     Thus,  after   a  court   has 


1  Tolmie  V.  Thomp.«on,  3  Cranch  C.  C.  123  (1827). 

2  Goulding  r.  (^laik,  .'U  X.  H.  143  (1S5G). 

a  Graluuu  r.  Wliitel.v,  2G  X.  J.  (L.)  2i;i  (1S5T). 
*  Tompcrt  v.  Lithgow,  1  Bush,  176  (ISCC). 


32  PRESU3IPTIVE   EVIDENCE.  [hULE    9. 

ordered  a  sale  in  the  exercise  of  its  general  and  ordinary 
jurisdiction,  it  would  be  presumed  that  the  court  had  satis- 
factory evidence  of  every  prerequisite  to  justify  the  court 
in  making  the  order,  and  such  presumption  would  continue 
so  lono-as  the  order  of  the  court  should  remain  unreversed. 
On  the  contrary,  if  the  proceedings  be  under  a  special 
authority  delegated  to  this  court  in  a  particular  case  and  not 
under  its  general  jurisdiction  as  a  court  of  common  law  or 
of  equity,  nothing  material  can  be  presumed.  The  person 
claiming  title  under  such  proceedings  must  show  them  to  be 
regular,  and  in  which  the  court  had  jurisdiction  and  was 
authorized  to  do  what  was  done.  By  the  Maryland  Act  of 
Descents,  the  chancellor  has  original  jurisdiction  only  in  the 
case  where  the  lands  to  be  divided  lie  in  different  counties. 
If  the  land  lie  entirely  in  one  county,  the  county  court 
alone  has  jurisdiction  of  the  case.  This  court,  therefore, 
can  exercise  jurisdiction  in  the  present  case  only  as  being 
substituted  for  the  county  court.  It  is  a  special  jurisdic- 
tion given  to  a  court  of  law  in  a  particular  case." 

"  There  is  no  presumption,"  it  was  said  in  case  II.,  *'  in 
favor  of  the  jurisdiction  of  inferior  courts  or  magistrates, 
or  persons  vested  with  special  powers  ;  but  their  authority 
must  be  shown." 

In  case  III.  it  was  said:  "  It  is  insisted,  however,  that 
the  presumption  of  law  is  that  the  officer  acted  correctly, 
and  within  the  scope  of  his  authority.  The  principle 
undoubtedly  prevails  as  applied  to  judicial  proceedings  in 
courts  of  general  jurisdiction;  but  the  maxim,  omnia 
proesumuntur  rite  esse  acta,  does  not  apply  so  as  to  give 
jurisdiction  to  magistrates,  and  to  persons  exercising  a 
special,  limited,  or  mere  statutory  authority." 

In  case  IV.  it  was  said:  "  The  Board  of  Aldermen  could 
only  become  a  court  to  try  charges  preferred  against  a  city 
officer  upon  being  duly  sworn  ;  and  being  a  court  of  the 
most  limited  juri.-^diction  —  Indeed  having  jurisdiction  as  a 
court  only  for  the  purpose  of  the  trial  and  removal  of  offi- 


RULE    9.]  REGULARITY   OF   JUDICIAL   ACTS.  33 

cer3  —  everything  essential  ti)  make  it  such  a  court  must 
appear  affirmatively,  and  no  intendment  or  presumption  in 
its  favor  can  be  indul<Ted." 


I.  By  a  State  statute  service  of  process  by  publication  is  substituted  in 
place  of  personal  citation  in  proceedings  ajjainst  persons  witliout  tiie 
State.  That  tlie  statute  has  been  strictly  followed  must  be  proved,  and 
no  presuraptiou  of  jurisdiction  will  be  indulged  in.^ 

♦'  When  the  special  powers  conferred,"  it  is  said  in  case 
I.,  '<  are  brought  into  action  according  to  the  course  of  the 
common  law,  i.e.,  in  the  usual  form  of  common  law  and 
chancery  proceedings,  by  regular  process  and  personal 
service,  where  a  personal  judgineut  or  decree  is  asked,  or 
by  seizure  or  attachment  of  the  property  where  a  judgment 
in  rem  is  sought,  the  same  presumption  of  jurisdiction  will 
usually  attend  the  judgments  of  the  court  as  in  cases  falling 
within  its  general  powers.^  But  where  the  special  powers 
conferred  are  exercised  in  a  special  manner,  not  according 
to  the  course  of  the  common  law,  or  where  the  general 
powers  of  the  court  are  exercised  over  a  class  not  within 
its  ordinary  jurisdiction,  upon  the  performance  of  pre- 
scribed conditions,  no  such  presumption  of  jurisdiction  will 
attend  the  judgment  of  the  court.  The  facts  essential  to  the 
exercise  of  the  special  jurisdiction  must  appear  in  such 
cases  upon  the  record.  The  extent  of  the  special  jurisdic- 
tion, and  the  conditions  of  its  exercise  over  subjects  or 
persons  necessarily  depend  upon  the  terms  in  which  the 
jurisdiction  is  granted,  and  not  upon  the  rank  of  the  court 
upon  which  it  is  conferred.  Such  jurisdiction  is  not  there- 
fore the  less  to  be  strictly  pursued,  because  the  same  court 
may  possess  over  other  subjects  or  other  persons  a  more 
extended  and  general  jurisdiction." 

1  Galpin  V.  Page,  18  Wall.  364  (1ST3) ;  Jordan  v.  Goblin,  13  Gal.  100;  Ricketson  v. 
Richardson,  26  Id.  149;  McMinn  r.  Whelan,  27  Jd.  300;  Morse  v.  Presby,  25  X.  II.  au-2; 
Com.  v.  Blood,  97  Mass.  53S  (1S67) ;  Gray  r.  Larrimorc,  4  Sawy  63S  (1S07) ;  Cofleld  v. 
McOlellanrt,  16  Wall.  3;U  (1S72). 

«  Ilarvcy  v.  Tyler,  2  Wall.  332. 

3 


34:  PRESU3IPTIVE   EVIDENCE.  [rULE    10. 

RrXiE  10.  —  The  regularity  of  the  proceedings  of  courts 
of  general  powers  is  presumed  (A),  and  so  of  the 
proceedings  of  inferior  courts,  jurisdiction  being  once 
showTi  to  exist  (B.)^ 

The  maxim  omnia  prcesumuntur  rite  esse  acta  finds,  per- 
haps, its  best  application  in  sustaining  the  validity  of  judi- 
cial proceedings.     They  are  presumed  to  be  regular.^     So 

1  Merritt  v.  Baldwin,  6  Wis.  439  (1858) ;  Outlaw  v.  Davis,  27  111.  467  (1861) ;  Tharp 
V.  Com.,  3  Mete.  (Ky.)  411  (1861) ;  Cora.  v.  Bolkom,  3  Pick.  281  (1825) ;  Davis  v.  Stale, 
17  Ala.  354  (1850;)  State  v.  Farish,  23  Miss.  483  (1852) ;  McGrews  v.  McGrews,  1  St.  & 
r.  30  (1831). 

2  Brown  v.  Connelly,  21  Ark.  140  (1840) ;  Seegee  v.  Thomas,  3  Blatchf.  Ill  (IS.'iS) ; 
Sanford  v.  Sanford,  28  Conn.  6  (1859);  Sidwell  v.  Worthinglon,  8  Dana,  74  (1839); 
Brown  v.  Gill,  49  Ga.  549  (1873);  Hudson  v.  Messick,  1  Houst.  275  (18.-^5);  Tibbs  v. 
Allen,  27  111.  119  (1862) ;  Moore  v.  Neil,  39  III.  2,56  (1866) ;  Rosenthal  v.  Renick,  44  Id. 
202  (1867) ;  Owen  v.  State,  25  Ind.  371  (1865) ;  Keelyt'.  Garner,  13  Jd.400  (1859) ;  Morgan 
V.  State,  12  Id.  449  (1859)  ;  McNorton  v.  Akers,  24  la.  369  (1868) ;  Sumner  v.  Cook,  12 
Kas.  162  (1873) ;  Letcher  v.  Kennedy,  3  J.  J.  Marsh.  701  (1830) ;  Sprague  v.  Litherbcrry, 
4  McLean,  412  (1848) ;  Reynolds  v.  Nelson,  41  Miss.  83  (1866) ;  Apthorp  v.  North,  14 
Mass.  167  (1817) ;  Com.  v.  Balkom,  3  Pick.  281  (1825) ;  McGrews  «.  McGrews,  1  St.  &  P. 
30  (1831) ;  Callison  v.  Autry,  4  Tex.  .371  (1849) ;  Smith  v.  Sprague,  4  Vt.  43  (1867) ;  Reedy 
V.  Scott,  23  Wall.  3.52  (1S74) ;  Florentine  v.  Barton,  2  Id.  210  (1804) ;  Cofleld  v.  McClel- 
land, 16  Id.  331  (1872) ;  Addington  v.  Allen,  11  Wend.  374  (1833) ;  Foot  v.  Stevens,  17 
Id.  486;  Erwin  v.  Lowry,  7  How.  181 ;  Voorhees  v.  Bank  of  United  States,  10  Pet.  449; 
Kingr.  Lyme  Regis,  1  Dougl.  159  (1779) ;  Caunce  v.  Rigby,  3  M.  &  W.  68  (1837) ;  James 
v.  Ileward,  2  G.  &  Dav.  264  (1842) ;  Parsons  v.  Lloyd,  3  Wils.  341  (1772) ;  Jackson  v. 
Astor,  1  Pinney,  137;  39  Am.  Dec.  231  (1841) ;  Shaefer  v.  Gates,  2  B.  Mon.  453;  38  Am. 
Dec.  164  (1842) ;  Seechrist  v.  Baskin,  7  W.  &  S.  403  ;  42  Am.  Dec.  251  (1844) ;  Homer  v. 
State  Bk.,  supra;  Carter  v  Jones,  5  Ired.  (Eq.)  196;  49  Am.  Dec.  424  (184S) ;  Parker 
V.  Boston,  ctc.R.  Co.,3Cush.  107;  50  Am.  Dec.  709  (1849) ;  Armstrongs.  Mudd,  10  B. 
Mon.  144;  50  Am.  Dec.  545  (1849);  Sever  v.  Russell,  4,  Cush.  513;  50  Am.  Dec.  811 
(1849).  A  mass  of  decisions  in  the  different  courts  throughout  the  country  affirm 
this  principle.  They  are  grouped  hereunder  according  to  States  for  convenience  of 
reference:  Alabama  — Leavltt  v.  Smith,  14  Ala.  279  (1848).  That  charge  was  jus- 
tified by  the  evidence.  Morris  v.  State,  25  Ala.  57  (1854).  That  court  below 
acted  properly.  Moore  w.  Briggs,  14  Ala.  700  (1848)  ;  Chamberlain  v.  Darrington,  4 
Port.  (Ala.)  515  (1837);  Castleberry  v.  Pearce,  2  Stew.  &  P.  14  (1832).  Evidence 
rejected  below  will  be  presumed  to  have  been  properly  rejected.  Ilolleman  v. 
DeNyse,  51  Ala.  95  (1874) ;  Blair  v.  Chapman,  62  Ala.  58  (1878) ;  Baker  v.  Prewett,  64 
Ala.  .'551  (1879).  Judgment  presumed  to  be.regular  (Falkner  i).  Christian,  51  Ala.  495 
(1874)  )  even  where  the  proceedings  are  summary.  Shouse  v.  Lawrence,  51  Ala.  560 
(1874).  The  refusalof  a  charge  by  the  lower  court  which  is  not  shown  to  be  in  writing 
as  required  by  statute,  will  be  presumed  to  have  been  refused  because  not  in  writing. 
Green  v.  State,  66  Ala.  40  (1880) .  Arkansas  —  Hale  v.  Warner,  36  Ark.  221  (1880) ;  Jones 
V.  Graham,  36  Ark.  383  (1830) ;  Dean  v.  State,  37  Ark.  59  (1881) ;  Pounders  v.  State,  37 
Ark.  399  (1881) ;  State  v.  Nichols,  33  Ark.  5.50  (1882) ;  St.  Louis,  etc.,  R.  Co.  v.  Murphy, 
28  Ark.  4.56  (1382) ;  Casteel  v.  Casteel,  38  Ark.  477  (1882) ;  Willson  v.  Light,  4  Ark.  158 
(1842) ;  BizzcU  v.  Williams,  8  Ark.  138  (1847).  That  jury  was  properly  sworn  below. 
State  V.  Gibson,  21  Ark.  140  (1800).  California  — Parker  v.  Altschul,  60  Cal.  380 
(1882) ;  Roe  r.  Superior  Court,  60  Cal.  93  (1332)  ;  Meredith  i;.  Santa  Clara  Mining  Co., 
60  Cal.  617  (1882) ;  Parnell  v.  Ilaahn,  61  Cal.  131  (1832) ;  Onesti  v.  Frcelon,  61  Cal.  625 
41682) ;  People  v.  Fuqua,  61  Cal.  377  (1882) ;  Montgomery  v.  Merrill,  62  Cal.  386  (18S2) ; 


RULE    10.]  REGULARITY   OF   JUDICIAL   ACTS.  35 

too  after  verdict  a  court  of  review  will  assume  that  the 
necessary  facts  to  sustain  it  were  proved.^ 

Hastings  v.  Cunningham.  35  Cal.  549  (1S581  ;  Moyes  v.  Griffith,  35  Cal.  6.'i6  (18&9) ; 
Garrison  v.  McGlockley,  38  Cal.  78  (18G;>)  ;  Mahoiiey  t'.  Middleton,  41  Cal.  41  (1871); 
Morris  t).  Anglo,  42  Cal.  23G  (1871) ;  Wilson  v.  Dougherty,  45  Cal.  34  (1872) ;  Brown  f. 
Kcntfleld,  50  Cal.  129  (1875).  That  person  was  present  when  verdict  was  rendered. 
People  V.  Stuart,  4  Cal.  218  (18J4).  That  evidence  warranted  verdict  or  judgment. 
Doll  V.  Anderson,  27  Cal.  243  (1SG5) ;  Folsom  v.  Hoot,  1  Cal.  374  (1851) ;  IJult  v.  Davis,  1 
Cal.  134  (1850) ;  Kilburn  v.  Uitchic,  2  Cal.  145  (1S.J2) ;  Grewell  v.  Henderson,  7  Cal.  200' 
(1857) ;  Nelson  r.  Lemmon,  10  Cal.  49  (1858) ;  Hentsch  v.  Porter,  10  Cal.  6.'j5  (1858); 
Brooks  V.  Douglass,  32  Cal.  209  (1SG7) ;  Scars  v.  Dixon,  33  Cal.  32G  (1807)  ;  Wallhridge 
t'.  Ellsworth,  44  Cal.  353  (1872).  Colorado  — That  grand  jury  was  properly  impan- 
eled. Wilson  r.  People,  3  Col.  325  (I.S77).  That  verdict  was  in  proper  form.  Christ 
V.  People,  3  Col.  394  (1877).  Florida  — Reed  v.  State,  Story  v.  State,  16  Fla.  064 
(1878) ;  Miller  r.  Kingsbury,  8  Fla.  356  (IS-W).  Georfiria  —  Tyler  Cotton  Press  Co.  v. 
Chevelier,  56  Ga.  404  (187G) ;  Endres  v.  Lloyd,  5G  Ga.  647  (1870) ;  Tabb  v.  Collier,  63 
Ga.  641  (1882) ;  Shands  v.  Howell,  28  Ga.  222  (1859) ;  Anderson  v.  State,  42  Ga.  9  (1871) ; 
Kcrwick  v.  Steelinan,  44  Ga.  197  (1871);  Deupree  v.  Deupree,  45  Ga.  414  (1872); 
McKee  v.  McKee,  48  Ga.  332  (1873) ;  Morris  v.  Ogles,  56  Ga.  592  (1875) ;  Bryson  v. 
Chisholm,  56  Ga.  596  (1875) ;  Laramorc  r.  Mclvenzie,  60  Gu.  533  (187S) ;  Hudgins  v. 
State,  61  Ga.  182  (1678) ;  Langston  v.  Marks,  68  Ga.  435  (1882) ;  McMichacl  v.  Hardee, 
68  Ga.  831  (1832).  The  charge  of  the  court  below  is  not  on  the  record.  The  presump- 
tion is  that  the  court  charged  the  law  correctly.  Spears  v.  State,  50  Ga.  252  (1874) ; 
Lackey  v.  Bostwick,  64  Ga.  45  (1875) ;  Jordan  v.  Ingram,  67  Ga.  92  (1876) ;  Eppuig  v. 
Tunstall,  57  Ga.  267  (1876)  ;  Mobile  Fire  Ina.  Co.  v.  Miller,  58  Ga.  420  (1877) ;  Madden 
V.  State,  53  Ga.  563  (1877) ;  Burge  v.  State,  02  Ga.  170  (1879) ;  Hunt  v.  Pond,  67  Ga.  578 
(1881);  Sims  v.  State,  08  Ga.  486  (1882).  Illinois  —  Kern  v.  Strasberger,  71  111.  303 
(1874) ;  Hermann  v.  Pardridge,  79  111.  471  (1S7.j)  ;  People  v.  Gray,  72  111.  343  (1874)  ; 
Corbus  V.  Tweed,  09  111.  205  (1873) ;  Barnelt  v.  Wolf.  70  111.  76  (1873) ;  Bush  v.  Harrison, 

70  111.  480  (1873) ;  Maxcy  v.  Williamson  Co.  72  111.  206  (1874) ;  Jones  v.  Neeley,  72  111. 
449  (1874) ;  St.  Louis,  etc.,  R.  Co.  v.  Wbeelis,  72  111.  538  (1874) ;  Choate  v.  Hathaway, 73 
111.519  (1374);  Shattuck  v.  People,  5  111.478  (1843);  Reed  v.  Phillips,  5  111.43  (lSt2) ; 
Glancy  V.  Elliott,  14  111.  456  (1853) ;  Dukes  v.  Rowley,  24  111.  210  (1800) ;  Scott  v.  White, 

71  111.  287  (1874) ;  Harris  v.  Lester,  80  111.  308  (1875) ;  Merchants,  Dispatch  Trans.  Co. 
V.  Joesting,  89  111.  152  (1878) ;  Brennan  v.  Shinkle,  69  111.  604  (1878) ;  Carr  v.  Miner,  92 
111.  604  (1879) ;  Augustine  v.  Doud,  1  111.  (App.)  588  (1878) ;  Tompkins  v.  Mann,  6  111. 
(App.)  171  (18,S0) ;  Fuller  v.  Bates,  6  111.  (App.)  442  (18S0) ;  Peoiile  v.  Ilessing,  28  111. 
410(1862).  That  court  below  disregarded  incompetent  evidence.  Ritter  r.  Schcnk, 
101  111.  387  (1882);  Fisher  v.  Chicago,  etc.,  R.  Co.  104  III.  323  (1882).  That  bill  of 
exception  shows  the  correct  facts.  Eastman  r.  People,  93  111.  112  (1879).  Indiana  — 
Harvey  v.  Laflin,  2  Ind.  478  (1851) ;  Cory  v.  Silcox.O  Ind.  39  (1854)  ;  Houston  f.  Hous- 
ton. 4  Ind.  139  (1853) ;  Tam  v.  Shaw,  10  Ind.  469  (1858) ;  Ilolloway  v.  State,  53  Ind.  5.54 
(1876);  State  V.  Stcinmeier,  64  Ind.  87  (1878);  Salander  v.  Lockwood,  06  Ind.  285 
(1879) ;  Hood  v.  Pearson,  07  Ind.  303  (1879) ;  Ross  v.  Misner,  3  Rlackf.  302  (l.'<;!4) ;  Bee- 
man  V.  State,  6  Blackf.  105  (1839) ;  State  v.  Beackmo,  8  Elackf.  240  (1840) ,  Kichols  i;. 

i  Dobson  V.  Campbell,  1  Sumn.  319  (1833) ;  Minor  v.  Mechanics'  Bank,  1  Pet.  46 
(1828) ;  Bastard  c.  Trutch,  3  Ad.  &  Ell.  451  (18:15) ;  R.  v.  Whiston,  4  Id.  007  (18:;0) ;  R. 
*'.  Whitney,  5  Id.  191  (1S;56) ;  R.  r.  Long  Buckley,  7  East,  45  (1800) ;  Lee  r.  Johnstone, 
L.  R.  1  H.  L.  Sc.  420  (1809);  Reed  v.  Jackson,  1  East,  355  (1801);  Uamsbotlom  r. 
l;uckhurst,2  M.  &  S.  567  (1813)  ;  R.  r.  Carlisle,  2  B.  A  Ad.  307  (18.31) ;  Jackson  v 
Pcsked,  1  M.  &  S.  237;  Spiers  v.  Parker,  1  T.  K.  141  (1576  ;  Davis  v.  Black,  1  Q.  B  911 
(1841) ;  Harris  v.  Gondwyn,  2  M.  &  Gr.  405;  Gladthorpe  r.  Hardnian,  13  M.  &  W.  oll 
(1841) ;  Smith  v.  Keating,  0  C.  B.  136  (1848) ;  Kidgillr.  Moor,  9  Id.  3C4  (1850)  ;  Delamcie 
r.  Queen,  L.  R.  2  II.  L.419  (18G7) ;  R.  v.  Waters,  1  Den.  C.  C.  356;  R.  v.  Bowen,  13  Q. 
B.  790  (1349) ;  UiDbs  v.  Pike,  9  M.  &  W.  351  (1342). 


36  PEESmiPTIVE   EVIDENCE.  [RULE    10. 

On  the  same  principle  the  regularity  of  the  proceedings 
of  a  military  court/  and  the  correctness  of  acts  of  legislative 
bodies  ^  are  presumed. 

■\ToodruflF;  6  Blackf.  439  (1847).  As  that  the  grand  jury  was  properly  impaneled. 
Long  V.  State,  46  Ind.  583  (1874).  Iowa  — County  of  Mills  v.  Hamaker,  11  Iowa,  203 
(1S()0) ;  Pursley  v.  Hays,  17  Iowa,  310  (1SG4) ;  Caudill  v.  Tharp,  1  G.  Greene,  94  (1S48) ; 
Saum  V.  Jones  Co.,  1  G.  Greene,  165  (1S48) ;  Rowan  v.  Lamb,  4  G.  Greene,  468  (1854) ; 
Henry  v.  Evans,  58  Iowa,  560  (1882).  The  record  being  silent,  the  Supreme  Court  will 
presume  that  the  jury  in  a  criminal  trial  when  they  retired  to  consider  their  verdict, 
were  in  charge  of  a  sworn  ofllcer;  State  v.  Pitts,  11  Iowa,  343  (1860) ;  also  that  they 
were  admonished  by  the  judge  as  required  by  law,  as  to  their  duty  when  separating. 
State  V.  Sliellady,  8  Iowa,  477  (1850).  Kansas  —  Mickel  v.  Hicks,  10  Kas.  578  (1878) ; 
Commrs.  of  Brown  Co.  v.  Roberts,  22  Kas.  702  (1S79) ;  Murray  v.  Kelley,  23  Kas.  606 
(ISSO).  "In  the  absence  of  any  evidence  to  the  contrary,  the  presumption  would  be, 
that  a  judgment  entered  in  vacation  was  valid,  according  to  the  laws  of  Illinois." 
Dodge  V.  Coffin,  15  Kas.  280  (1875) ;  Ward  r.  Baker,  16  Kas.  31  (1876) ;  Ilaynes  v.  Cowen, 
15  Kas.  277,  637  (1875).  Kentucky —  Young  v.  Dorsey,  2  Lilt.  202  (1822) ;  Chrisman  r. 
Gregory,  4B.  Mon.  474  (1844).  Louisiana  — Bank  of  Alabama  v.  Livingston,  2  La. 
Ann.  915  (1847) ;  Gentile  V.  Foley,  3  La.  Ann.  146  (1848).  Maine  — Bangor  v.  Bruns- 
wick, 30  Me.  398  (1840) ;  Bullen  v.  Arnold,  31  Me.  583  (1850).  Michigan  — That  court 
below  acted  on  sufficient  evidence  Wood  v.  Lake  Shore  R.  Co. ,49  Mich.  370  (1882;) 
and  disregarded  Incompetent  evidence,  Cuming  v.  Grand  Rapids,  46  Mich.  150 
(18S1) ;  Keables  v.  Christie,  47  Mich.  594  (1882) ;  Mawich  v.  Elsey,  47  Mich.  10  (1881) ; 
or  otherwise  proceeded  properly.  Maxwell  v.  Deens,  46  Mich.  35  (1881) ;  Brown  v. 
Haak,  48  Mich.  229  (1882) ;  Facey  v.  Fuller,  13  Mich.  527  (1865).  Jury  is  presumed  to  be 
intelligent  enough  to  understand  judge's  charge.  Hart  v.  Newton,  48  Mich.  401  (1882). 
Minnesota  — That  court  below  acted  properly  or  on  sufficient  evidence.  Butler 
r.  Winona  Mill  Co.,  28  Minn.  205  (1881) ;  Jones  v.  Wilder,  28  Minn.  239  (1881) ;  State  v. 
Brown,  12  Minn.  538  (1867).  Mississippi  —  That  court  below  acted  properly,  or  on 
sufficient  evidence.  Hightower  v.  State,  58  Miss.  636  (1881) ;  Guice  r.  State,  60  Miss- 
714  (1882) ;  Taggart  v.  Muse,  60  Miss.  870  (1SS2)  ;  Smith  v.  State,  58  Miss.  867  (1881) ; 
Dyson  f.  State,  26  Miss.  302  (1853) ;  Carter  v.  Blanton,33Mis8.  291  (1857).  Missouri  — 
Appleby  v.  Brock,  76  Mo.  315  (1882) ;  Belkin  v.  Rhodes,  76  Mo.  643  (1882) ;  Johnson  v. 
Long,  72  Mo.  210  (1880) ;  State  v.  Brown,  75  Mo.  317  (1882)  ;  Walthar  v.  Warner,  26  Mo. 
143  (1858).  Nebraska— Hansen  v.  Bergquist,  9  Neb.  269  (1879) ;  State  National  Bk. 
V.  Scofleld,  9  Neb.  499  (1880) ;  Davenport  Plow  Co.  v.  Mewls,  10  Neb.  317  (1880) 
Nevada  — Nosier  v.  Hayncs,  2  Nev.  53  (1866);  Champion  v.  Sessions,  2  Nev.  271 
(18GG) ;  Mitchell  v.  Bromberger,  2  Nev.  345  (1866) ;  Virgin  r.  Brubaker,  4  Nev.  31 
(1SC8) ;  State  v.  Stanley,  4  Nev.  71  (18C8) ;  Lady  Bryan  Gold,  etc.,  Co.  v.  Lady  Bryan 
Mining  Co.,  4  Nev.  414  (1868)  ;  Flanncry  v.  Anderson,  4  Nev.  438  (1868) ;  Re  Stickworth, 
7  Nev.  223  (1872).  New  Jersey  — Coxc  v.  Field,  13  N.  J.  (L.)  215  (1832).  New 
York— Barnard  v.  IIcydrick,49  Barb.  62  (1S66).  Ohio  — Merchant  «•.  North,  10  Ohio 
St.  251  (18.59);  Sheehan  v.  Davis,  17  Ohio  St.  571  (1867);  Hemmingway  v.  Davis,  24 
Ohio  St.  150  (1873).  Pennsylvania  —  Fife  v.  Com.,  29  Pa.  St.  429  (1857).  Texas  — 
Frosh  V.  Holmes,  8  Tex.  '29  (I8.')2) ;  Hillebrant  v.  Burton,  17  Tex.  138  (18.56)  :  Castancdo 
t'.  State, 7Tex.  (App.)  584  (1880) ;  Davis  v.  State, 6 Tex.  (App.)  197  (1879).  Virginia  — 
Ayres  v.  Robins,  30  Gratt.  (Va.)  105  (1878).  West  Virginia— Garrison  v.  Myers,  12 
W.  Va.  330  (1878) ;  Paxton  v.  Rucker,  15  W.  Va.  547  (1879).  Wisconsin  — Abbott  v. 
Johnson,  47  Wis.  239  (1S79) ;  Knowlton  v.  Culver,  1  Chand.  (Wis.)  214  (1849).  United 
States  —  U.  S.  v.  White,  5  Cranch  C.  C.  73  (1836) ;  Young  v.  Ridenbaugh,  3  Dill.  23. 
(1875) ;  Sprague  v.  Litterberry,  4  McLean,  442  (1848). 

1  Slade  V.  Minor,  2  Cranch  C.  C.  1.39  (1817). 

«  Gosset  V.  Howard,  10  Q.  B.  441  (1845)  ;  Garrett  v.  Dillsbury  R.  Co.,  78  Pa.  St.  467 
(1875)  ;  Cochran  v.  Arnold,  58  Id.  399  (1868) ;  Wickham  v.  Page,  49  Mo.  527  (1872) 


RULE    10.]         REGULARITY   OF   JUDICIAL   ACTS.  37 

Ulustratwns. 
A. 

I.  The  record  of  a  probate  court  shows  the  regular  appointment  of  an 
administrator,  and  that  on  a  subscciuont  day  it  was  ordered  tliut  "the 
resii^nation  be  "  received  and  recorded,  and  that  letters  dc  bonis  non  were 
on  the  same  day  granted  to  another.  In  a  collateral  proceeding  involv- 
ing the  validity  of  the  latter's  appointment,  it  will  be  presumed  that  the 
resignation  recorded  was  of  the  office  of  administrator,  and  that  it  was 
in  writing  as  required  by  statute.^ 

II.  The  record  of  an  action  upon  a  penal  bond  states  that  the  "jury 
were  sworn  as  required  by  law."  The  presumption  is,  that  they  were 
sworn  "  to  inquire  into  the  truth  of  the  breaches  and  assess  the  damages  " 
as  to  a  party  in  default,  and  to  "  try  the  issues  and  assess  the  damages  " 
as  to  those  who  have  appeared,  as  the  statute  requires.* 

III.  Lands  of  an  infant  are  sold  in  pursuance  of  a  decree  of  a  circuit 
court.  On  a  bill  llled  to  set  aside  the  sale,  the  record  shows  that  process 
was  ordered  against  the  infants,  and  at  the  following  term  a  guardian  «(Z 
litem  appointed.  The  presumption  is  that  they  were  regularly  brought 
into  court.* 

IV.  A  statute  requires  that  on  a  sale  for  taxes  the  purchaser  shall  give 
a  bond  to  be  approved  by  the  court;  otherwise  the  acknowledgment  of 
the  deed  will  be  invalid.  In  a  proceeding  to  set  aside  a  tax  sale  it  will 
bo  presumed  that  the  bond  on  file  was  approved  by  the  court.* 

V.  A.,  in  an  action  of  book  account,  presents  to  the  court  certain 
matters  for  adjustment  and  a'lowance,  which  were  passed  upon  by  a  ref- 
eree and  his  report  is  accepted  by  the  court.  B.  sues  A.  on  two  pi'omis- 
sory  notes  to  which  A.  pleads  payment.  His  evidence  shows  that  they 
were  the  same  matters  as  have  been  presented  before  the  court.  The 
presumption  is  that  the  referee's  decision  was  made  ou  the  merits  and 
was  a  final  settlement.^ 

VI.  In  the  Supreme  Court  in  a  criminal  case,  the  record  does  not  show 
whether  the  charge  of  the  judge  was  in  writing,  as  required  by  law,  or 
oral.     The  presumption  is  that  it  was  the  former.* 

VII.  B.  being  convicted  of  rape,  on  appeal  to  the  Supreme  Court  the 
record  shows  that  the  jury  were  "duly  sworn."  The  law  requires  that 
they  shall  be  sworn  to  "well  and  duly  try  and  true  deliverance  make," 
etc.    The  presumption  is  that  the  proper  oath  was  administered.^ 

1  Gray  v.  Cruise,  3fi  Ala.  55!1  (18G0). 

2  State  V.  Gibson,  21  Ark.  140  (1S60). 

8  Brackeuridge  v.  Dawson,  7  Ind.  :!S3  (18.56). 
*  Cromelein  v.  Brink,  29  Pa.  St.  522  (1853). 
6  Stearns  r.  Stearns,  .■?2  Vt.  678  (ISCO). 
0  People  V.  Garcia,  25  Cal.  5:il  (18fi4). 
'  Beale  v.  Com.,  25  Pu.  St.  11  U855). 


38  PRESUl^rPTIVE   EVIDENCE.  [rULE    10. 

VITI.  In  an  appellate  court  the  record  states  a  verdict  for  the  plaintiff 
on  twelve  counts,  and  that  the  jury  were  discharged  on  eight  others.  It 
is  objected  that  there  is  nothing  to  show  that  the  jury  have  been  dis- 
charged with  the  consent  of  the  parties.  This  will  be  presumed  to  have 
been  the  case.i 

IX.  A  court  affirms  the  report  of  a  sale  made  by  a  master  under  a 
decree  of  foreclosure.  The  presumption  is  that  the  evidence  was  suffi- 
cient to  warrant  a  confirmation. ^ 

X.  An  appeal  bond  is  executed  by  an  attorney  in  fact.  The  presump- 
tion is  that  the  court  had  evidence  of  his  authority  to  do  so.^ 

XI.  An  order  of  sale  does  not  on  its  face  appear  to  have  been  granted 
on  the  application  of  the  administrator,  as  required  by  law.  This  in 
another  proceeding  will  be  presumed.* 

XII.  A  statute  empowers  a  court  to  call  special  terms.  A  record 
recites  that  the  court  convened  in  pursuance  of  the  order  of  the  judire 
heretofore  made.  The  presumption  is  that  the  special  term  was  in  con- 
formity with  the  statute. 5 

XIII.  One  judge  tries  a  case  in  the  place  of  another.  The  reason  for 
the  change  does  not  appear.  The  presumption  is  that  it  is  for  a  reason 
mentioned  in  the  statute  allowing  such  changes.^ 

XIV.  The  record  does  not  show  who  presided  at  the  trial  below.  The 
presumption  is  that  the  judge  rightly  authorized  by  law  did.^ 

XV.  It  does  not  appear  in  a  record  whether  a  certain  juror  was  sworn 
on  the  trial.     The  presumption  is  that  he  was.'' 

XVI.  An  objection  to  a  question  is  sustained  by  the  court,  but  the 
witness,  nevertheless,  proceeds  to  answer  it.  The  presumption  is  that 
the  jury  disregarded  the  answer. 

XVII.  A  supreme  court  has  power  to  appoint  school  directors  when 
vacancies  occur.  The  record  of  the  court  shows  it  appointed  certain 
school  directors,  but  does  not  show  that  vacancies  existed  at  the  time. 
This  will  be  presumed.^" 

XVIII.  A  record  on  appeal  states  that  the  issue  was  tried  by  "a  jury 
of  good  and  lawful  men."  Only  eleven  names  are  set  out.  The  court 
will  presume  that  there  were  twelve  jurors." 

1  Powell  V.  Sonnett,  3  Bing.  381  (1826). 

2  Moore  v.  Titman,  .33  III.  358  (1864). 

3  Illinois  Cent.  R.  Co.  v.  Johnson,  40  111.  35  (1864) 
*  Lay  V.  Lawson,  23  Ala.  377  (1853) . 

6  Cook  V.  Skelton,  20  111.  107  (1858). 
«  People  V.  Mellon,  40  Cal.  648  (1871). 
'  People  V,  Woodside,  72  111.  407  (1874). 
«  Peoiile  V.  Darr,  61  Cal.  538  (1882.) 
»  People  V.  Hall,  57  Cal.  569  (1881). 
1"  Pierce  v.  Edington,  .38  Ark.  l.-iO  (1881). 
n  Foote  v.  Lawrence,  1  Stew   (Ala.)  483  (1828) 


I 


RULE    10.]         REGULARITY   OF   JUDICIAL   ACTS.  39 

XIX.  In  the  Supreme  Court  the  record  does  not  show  that  the  person 
was  present  when  the  order  for  his  execution  was  made.  It  is  conceded 
that  he  had  this  right.    The  presumption  is  that  it  was  accorded  him.^ 

XX.  Parties  appeal  from  a  decree  rendered  on  final  hearing  "  on  the 
original  and  amended  bills,  with  the  exliibits  thereto,  decrees  pro  con- 
fesso  against  the  parties  who  had  not  appeared  and  pleaded,  and  the 
agreement  of  counsel."  The  agreement  is  not  set  out  in  the  record. 
The  court  will  presume  that  it  justified  the  decree  rendered.' 

XXI.  The  record  on  appeal  in  a  murder  case  recites  that  the  jury 
"  were  duly  sworn  according  to  law."  The  presumption  is  that  the  cor- 
rect oath  was  administered.* 

The  Supreme  Court  will  not  presume  that  the  Di. strict 
Court  received  documents  in  evidence  not  properly  stamped 
as  required  by  the  United  States  law.*  From  delivery  of 
letters  of  administration  it  is  presumed  that  oath  required  of 
the  administrator  was  taken. ^  Proof  that  certain  lost  writs 
were  issued  by  the  proper  oflficer  raises  a  presumption  that 
they  were  sufficient  as  to  form  and  seal.®  Where  a  cause  is 
on  trial  at  twelve  o'clock  on  the  night  of  the  last  day  of  the 
term,  it  will  be  assumed  that  the  term  did  not  close  until 
that  time.'  A  modification  of  judgment  made  by  the  court 
after  verdict  will  be  presumed  to  have  been  made  on  the 
statutory  grounds.*^  It  will  be  presumed  that  an  order 
directing  a  sheriff  to  sell  property  of  a  succession  was  regu- 
larly issued.*     AVhere  the  law  requires  that  the  bond  given 


1  People  V.  Sing  Linn,  61  Cal.  538  (18S2).    Missouri  cases  contra. 

-  Collins  V.  Loyal,  56  Ala.  403  (1876) ;  and  .*ee  Hearn  v.  Stale,  6'2  Ala.  218  (1878). 

3  Mitchell  V.  State,  58  Ala.  417  (1877).  "  The  sum  of  our  decisions  on  the  question 
of  error  in  swearing  the  jury  is  that  the  correct  oath  will  he  ))resumed  to  have  been 
administered  when  It  api)ears  that  the  jury  was  sworn,  unless  it  also  appears  that 
one  suhstantially  different  or  defective  was  administered.  Walker  v.  State,  49  Ala. 
^70;  McCallcr  v.  State,  49  Ala.  40;  Crist  v.  State,  21  Ala.  149;  Blair  t'.  State,  52  Ala. 
344;  De  Bardelaban  v.  State,  50  Ala.  180;  Moore  v.  State,  52  Ala.  424;  Bush  v.  Stale 
52  Ala.  13;  McNeill  v.  State,  47  Ala.  503;  Edwards  v.  State,  49  Ala.  334;  McGuire  v. 
State,  37  Ala.  161.  The  cases  of  Johnson  v.  State,  47  Ala.  31 ;  Smith  r.  State,  47  Ala. 
545;  Smith  v.  State,  53  Ala.  486,  and  Murphey  v.  State,  54  Ala.  178,  being  contrary  to 
the  decisions  in  the  cases  sitpra  are  overruled." 

*  Towne  i'.  Bossier,  19  La.  Ann.  102  (I8C7). 

6  Brooks  V.  Walker,  3  La.  Ann.  150  (1848). 

«  McXorton  v.  Akers,  24  la.  369  (1868). 

'  Morgan  v.  State,  12  Ind.  449  (1859). 

8  Sumner  r.  Cook,  12  Kas.  162  (1873). 

»  Ue  Wadsworth,  2  La.  Ann.  966  (1874). 


40  PRESUMPTIVE  EVIDENCE.        [rULE  10. 

by  an  administrator  before  the  sale  of  the  real  estate  of  his 
intestate  shall  be  approved  in  writing  by  the  judge  of  pro- 
bate, the  presumption  is  that  this  was  done.^  So  as  to  duties 
of  the  register  of  court  before  sale.^  It  will  be  presumed 
that  the  court  below  did  "  strict  justice  "  to  the  parties  as 
required  by  statute.^  In  a  collateral  proceeding  it  will  not 
be  presumed  that  service  was  made  by  an  officer  of  the  court 
outside  of  the  county.*  A  letter  of  guardianship  in  due 
form  will  be  presumed  to  have  been  regularly  issued.^  The 
presumption  is  that  evidence  admitted  by  a  justice  of  the 
peace  is  legal  evidence ;  the  party  alleging  error  must  prove 
it.®  A  docket  entry  showing  that  the  jury  were  "  sworn 
according  to  law,"  the  presumption  is  that  they  were  regu- 
larly sworn. ^  Where,  after  an  order  for  a  change  of  venue, 
the  parties  appear  and  litigate  the  case  in  the  same  court  to 
final  judgment,  the  presumption  is  that  the  change  of  venue  is 
waived.^  A  judgment  by  default  entered  on  the  first  day  of 
a  term  is  presumed  to  be  entered  while  the  court  is  in  ses- 
sion and  on  due  proof  of  the  noii-appearance  of  the  defend- 
ant.^ Where  a  writ  is  duly  returned  it  will  be  presumed 
that  it  was  duly  served.^''  The  law  presumes  that  proper 
care  is  taken  of  official  records  and  files ;^^  that  copies  of 
papers  used  in  the  court  below  were  proper  copies. ^^  "Upon 
the  common  presumptions  in  favor  of  every  judicial  tri- 
bunal, acting  within  its  jurisdiction,  we  must  suppose  that 
all  persons  concerned  had  due  notice."  ^^  Where  judgment 
is  shown  the  presumption  is  that  the  summons  was  served 


1  Austin  V.  Austin,  50  Me.  74  (1802). 

2  Vincent  t'.  Eaves,  1  Mete.  247  (1S58). 

3  Grinstead  v.  Foote,  26  Miss.  4T6  (ISSS). 
*  state  V.  Williamson,  57  Mo.  192  (1874). 

6  Vandcrveere  v.  Gaston,  25  N.  J.  L.  615  (1856). 

«  Smi-h  V.  Williamson,  11  X.  J.  L.  313  (1830). 

^  Williamson  v.  Fox,  38  Pa.  St.  214  (1801). 

8  Frosh  V.  Holmes,  S  Tex.  20  (1852) ;  Doty  v.  State,  6  Blackf.  629  (1843). 

»  Bunker  v.  Hand,  19  Wis.  254  (1805). 
1''  Drake  v.  Duvcnick,  45  Cal.  455  (1873). 
n  nice  V.  Cunningham,  29  Cal.  492  (1806). 
■12  Morris  v.  Ogle,  50  Ga.  502  (1870). 
13  Brown  v.  Wood,  17  Mass.  08  (1820). 


RULE    10.]         KEGULARITY    OF   JUDICIAL   ACTS.  41 

on  the  dcfemlant  as  required  by  law.^  "Where  documentary 
evidence  used  in  the  court  below  has  been  lost,  everything 
is  to  be  presumed  to  have  been  contained  in  them  to  support 
the  opinion  of  the  court.''  But  injury  is  presumed  from 
evidence  erroneously  admitted.'' 

In  case  IV.  it  was  said:  "  If  any  presumption  of  law  be 
reasonable,  it  is  that  which  favors  the  rcfrularity  of  judicial 
proceedings  until  something  else  appears;  and  the  greater 
the  tendency  to  irregularity,  the  greater  the  necessity  for 
violence  of  presumption  against  it.  This  is  all  that  saves 
our  records.  The  bond  required  in  this  case  was  given. 
The  court  ought  to  have  approved  it.  Without  such  action 
the  acknowledgment  of  the  deed  was  improper;  and  before 
convicting  the  judges  of  impropriety,  some  evidence  is 
needed.  The  absence  of  any  note  of  approval  is  insuffi- 
cient. The  letter  of  the  law  did  not  require  it,  and  the 
omission  was  an  informality  which  can  not  upturn  the  whole 
proceeding." 

In  case  V.  it  was  said  :  "To  support  the  plea  of  payment 
the  plaintiff  gave  evidence  of  certain  matters  which  he 
claimed  to  have  applied  as  payment,  which  he  had  previ- 
ously presented  before  tl>e  auditor  for  allowance  in  his 
action  on  book  against  the  defendant,  and  which  were  passed 
upon  by  the  auditor.  It  appears  from  the  bill  of  exceptions 
that  the  report  of  the  auditor  was  accepted  by  the  court. 
The  claim  of  the  plaintiff  here  is  that  there  was  no  testi- 
mony tending  to  show  that  the  matters  he  claimed  before 
the  auditor  were  either  allowed  or  rejected  upon  their 
merits;  and  as  they  might  have  been  disallowed  on  some 
mere  technical  point,  the  plaintiff  should  be  allowed  to  have 
them  apply  as  payment,  unless  the  defendant  shows  affirma- 
tively that  the  decision  of  the  auditor  was  upon  their  merits. 
But  we  think  that  i\\Q- prima  facie  presumption  of  law  is  to 
the  contrary,  viz.  :  that  where  a  question  is  brought  before 

1  Ray  V.  Rowley,  4  Thomp.  &  C.  43;  1  lluu,  614  (1874). 
-  Carroll  v.  Peake,  1  Pet.  13  (1828). 
»  Grimes  v.  Fall,  15  Cal.  63  (1S60). 


42  rHESUMPTIVE   EVIDENCE.  [llULE    10. 

a  judicial  tribunal,  havino;  jurisdiction  of  the  matter,  and 
is  there  decided,  the  decision  is  presumed  to  be  upon  the 
merits  of  the  controversy  and  to  be  a  final  settlement  of  it. 
The  contrary,  if  claimed,  must  be  made  to  appear  by  due 
proof.  Public  policy  requires  this  presumption,  that  there 
may  be  an  end  to  litigation  ;  and  experience  shows  that  in 
the  ordinary  administration  of  justice  the  fact  corresponds 
with  the  legal  presumption." 

In  case  VII.  it  was  said  :  "  Because  the  law  enjoined  an 
oath  in  the  form  I  have  stated,  and  because  the  record  says 
the  jury  were  sworn,  we  are  bound  to  presume  that  they 
were  sworn  in  that  form.  *  *  *  "\Ye  are  brought  by  an 
inspection  of  the  record  and  the  application  of  the  appro- 
priate legal  maxim  to  the  conclusion  that  the  oath  actually 
administered  was  the  very  oath  the  law  furnished  for  the 
occasion.  We  are  not  to  expect  too  much  from  records  of 
judicial  proceedings.  They  are  memorials  of  the  judgments 
and  decrees  of  the  judges,  and  contain  a  general,  but  not  a 
particular,  detail  of  all  that  occurs  before  them.  If  we 
should  insist  upon  finding  every  fact  fully  recorded  which 
must  occur  before  a  citizen  must  be  punished  for  an  offense 
against  the  laws,  we  should  destroy  public  justice  and  give 
unbridled  license  to  crime.  Much  must  be  left  to  intend- 
ment and  presumption,  for  it  is  often  less  difficult  to  do 
things  correctly  than  to  describe  them  correctly.  This 
record  is  unusually  full ;  its  fullness,  indeed,  is  the  source 
of  the  defections  urged  against  it;  and  yet  it  does  not  tell 
us  how  the  defendant  was  tried,  whether  in  the  course  of 
common-law  trials  by  jury,  or  in  some  of  the  various  other 
modes  that  have  been  known  in  the  world.  Is  the  judgment 
to  be  reversed  for  that  reason?  By  no  means.  We  intend 
that  the  trial  was  by  jury  and  by  witnesses  confronting  the 
deceased,  because  the  record  certifies  us  of  a  trial,  and  we 
know  that  a  jury  and  witnesses  are  indispensable  to  a  con- 
stitutional and  legal  trial.  In  the  same  manner  we  infer  the 
presence  of  the  jury  throughout  the  trial,  though  the  record 
takes  no  notice  of  them  from  the  24th  to  the  27th  of  Octo- 


RULE    10.]         KEGULAUITY   OF   JUDICIAL   ACTS.  43 

bcr  ;  and  that  the  testimony  was  delivered  ore  tenus,  thon;ih 
the  names  of  the  witnesses  in  the  marjiin  is  all  that  is  said 
about  witnesses." 

In  case  XIX.  it  was  said  :  *'  It  is  claimed  on  the  part  of 
the  defendant  that  he  was  entitled  to  be  present  when  the 
order  for  his  execution  was  made.  So  he  was.  But  it  does 
not  appear  from  the  record  that  he  was  not  present,  and  in 
sujjport  of  the  regularity  of  the  proceedings  of  the  court 
below,  the  presumption  is  indulged  that  he  was." 

In  case  XX.  it  was  said  :  "  Shall  the  presumption  be 
made,  if  error  is  found  in  the  record  as  it  now  stands,  that 
it  was  not  cured  and  the  decree  authorized  by  the  agree- 
ment? Or  shall  the  presumption  be  indulged  that  the  court 
conformed  the  decree  to  the  agreement  submitted  to  it,  by 
which  the  errors  apparent  on  the  record  were  waived  ?  It 
is  the  last  presumption  which  the  unvarying  practice  of 
this  court  compels  us  to  indulge.  Error  must  be  shown 
affirmatively,  and  all  reasonable  intendments  consistent  with 
the  record  must  be  made  in  support  of  the  decrees  or  judg- 
ments of  primary  courts." 

B. 

I.  A  judgment  is  produced  which  was  confessed  before  a  justice  of 
the  peace.  The  hiw  required  that  the  confession  should  be  entered  on 
tie  minutes  of  a  docket  and  the  judgment  made  thereon.  The  docket  is 
lost.    The  presumption  is  that  the  entry  was  properly  made.^ 

II.  It  appearing  that  a  probate  court  had  jurisdiction  to  render  a  cer- 
tain judgment,  the  question  arises,  whether  all  the  proceedings  were 
regular.    The  presumption  is  that  they  were.* 

III.  On  an  application  to  a  surrogate  for  an  order  to  sell  the  real  estate 
of  a  decedent,  the  court  appointed  a  guardian  for  the  infant  heirs.  The 
question  subsequently  arose  whether  tliis  had  been  done  within  the  time 
required  by  statute.    The  presumption  was  that  it  had.^ 

IV.  The  terms  of  a  police  court  were  by  law  daily  for  the  transaction 
of  criminal  business  and  on  certain  specifled  days  for  civil  business. 
The  record  of  a  criminal  case  in  such  court  showed  only  that  the  trial 


1  .Sheer  V.  B.ank  of  Pittsburg,  16  How.  B71  (1853). 
s  State  r.  Ilinchm.-vn.  27  I'a.  St.  479  (1856). 
»  Sheldon  v.  Wright,  7  Barb.  39  (1849). 


44"  PRESUMrriYE  evidence.  [rule  10. 

took  pla^e  on  a  day  named.     The  presumption  was  that  the  court  was 
then  engaged  in  the  transaction  of  criminal  business. i 

111  case  II.  it  was  said  :  "  From  all  this  it  appears,  first, 
that  the  Probate  Court  had  jurisdiction  to  render  the  judg- 
ment sued  on.  The  costs  accrued  in  a  proceeding  in  a  civil 
case.  And  this  appearing  upon  an  inquiry  which  we  are 
bound  to  institute,  it  matters  not  that  the  probate  court 
ranks  as  an  inferior  tribunal,  and  not  as  one  of  those  supe- 
rior courts  who  exercise  a  common-law  jurisdiction,  and 
whose  acts  and  judgments  are  conclusive  in  themselves; 
for  the  strictness  with  which  the  proceedings  of  inferior 
tribunals  are  scrutinized  only  applies  to  the  question  of 
jurisdiction,  and  when  the  existence  of  that  is  proved  and 
conceded,  the  maxim  omnia  rite  acta  applies  to  them  as  well 
as  to  courts  of  general  jurisdiction." 

"Upon  the  whole,"  said  Wells,  J.,  in  case  III.,  "I  am 
prepared  to  hold  at  this  point  in  the  case,  that  the  ordinary 
presumption  that  a  public  officer  has  done  his  duty  should 
apply.  I  do  not  think  that  such  a  presumption  alone  should 
ever  be  allowed  to  sustain  a  vital  jurisdictional  fact,  such  as 
I  regard  this  to  be  ;  but,  inasmuch  as  the  fact  that  a  guard- 
ian was  appointed  is  made  out  independently,  and  without 
the  aid  of  such  presumption,  as  the  question  is  only  as  to 
the  time  when  it  Avas  done,  and  as  the  proof  shows  that  it 
might  have  been  done  in  proper  time,  the  law  will  presume 
that  the  appointment  was  made  the  requisite  time  before  the 
parties  in  interest  were  by  the  order  to  show  cause." 

In  case  IV.  it  was  said :  "A  court  was  required  by  law 
to  be  held  on  that  day  for  criininal  business.  It  is  to  be 
presumed  that  such  a  court  was  held  in  obedience  to  the 
requirement;  and  as  this  case  was  within  the  jurisdiction  of 
such  a  court,  and  as  the  record  recites  that  it  was  heard  and 
adjudged  in  the  police  court  of  Haverhill  on  that  day,  it  is 
to  be  presumed  that  it  was  then  engaged  in  the  transaction 
of  criminal  business.  It  was  tried  at  a  time  when  the  court 
should  have  been,  and,  we  presume,  was  in  session  for  that 
purpose." 

1  Com.  V.  Brown,  123  Mass.  410  (1877). 


RULE    11.]         REGULARITY   OF   JUDICIAL   ACTS. 


45 


RULE  11.  —  Jurisdiction  of  the  person  beyond  the  ter- 
ritorial limits  of  a  court  of  general  powers  can  not 
be  presumed. 

*'  The  presumptions  indulged  in  support  of  the  judgments 
of  superior  courts  of  general  jurisdiction  arc  also  limited 
to  jurisdiction  over  persons  within  their  territorial  limits, 
l)crs()ns  who  can   be  reached  by  their  process.     *     *     * 
The  tribunals  of  one   State  have  no  jurisdiction  over  the 
persons  of  other  States,  unless  found  within  their  terri- 
torial limits;  they  can  not  extend  their  process  into  other 
States,  and  any  attempt  of  the  kind  would  be  treated  in 
every   other   forum  as  an  act  of   usurpation  without  any 
binding    efficacy.^      *      *      #      "Whenever,    therefore,    it 
appears   from  the    inspection   of    the   record   of   a   court 
of  general   jurisdiction  that  the  defendant  against  whom 
a  personal   decree   of   judgment   is  rendered,   was  at  the 
time  of   the  alleged  service  without  the  territorial  limits 
of  the  court,  and  thus  beyond  the  reach  of   its  process, 
and  that  he  never  appeared  in  the  action,  the  presumption 
of  jurisdiction  over  his  person  ceases,  and  the  burden  of 
establishing   the   jurisdiction  is   cast  upon  the  party  who 
invokes    the    benefit    or   protection   of    the    judgment    or 
decree."  ^ 


I  In  Picquet  v.  Swan,  5  Mason,  40,  Mr.  Justice  Story  said:  "The  courts  of  a 
State,  however  general  may  be  their  jurisdiction,  are  necessarily  confined  to  the 
territorial  limits  of  the  State.  Their  process  can  not  be  executed  beyond  thos-e 
limits;  and  any  attempt  to  act  upon  persons  or  things  beyond  them  would  be  deemed 
a  usurpation  of  foreign  sovereignty  not  justified  or  acknowledged  by  tl.e  law  of 
nations.  Even  the  Court  of  King's  liench  in  England,  though  a  court  of  general 
jurisdiction,  never  imagined  that  it  could  serve  proce-ss  iu  Scotland,  Ireland,  or  the 
colouics,  to  compel  an  appearance  or  justify  a  judgment  aprainst  persons  residing 
therein  at  the  commencement  of  the  suit.  This  results  from  the  general  principle 
that  a  court  created  within  and  for  a  jiarticular  territory  Is  bounded  in  the  exercise 
of  its  powers  by  the  limits  of  such  territory.  It  matters  not  whether  it  be  a 
kingdom,  a  .state,  a  county,  or  a  city  or  other  local  district.  If  it  be  the  former 
it  is  necessarily  bounded  and  limited  by  the  sovereignty  of  the  government  itself, 
which  can  not  be  extra-territorial;  if  the  latter,  then  the  judicial  interpretation 
is  that  the  sovereign  haa  chosen  to  assign  this  tpecial  limit,  short  of  his  general 
authority." 

«  Galpin  v.  Pago,  IS  Wall.  364  C1S731. 


46  PRESUMPTIVE   EVIDENCE.  [rULE    12. 

RUIjE    12  .  —  And     a   presumption  can  not   contradict 
facts  averred  or  proved. 

"  They  have  no  place  for  consideration  when  the  evidence 
is  disclosed  or  the  averment  is  made.  When,  therefore,  the 
record  states  the  evidence  or  makes  an  averment  with 
reference  to  a  jurisdictional  fact,  it  will  be  understood  to 
speak  the  truth  on  that  point,  and  it  will  not  be  presumed 
that  there  was  other  or  different  evidence  respectinoj  the 
facts  or  that  the  fact  was  otherwise  than  as  averred.  If  for 
example,  it  appears  from  the  return  of  the  officer  or  the 
proof  of  service  contained  in  the  record  that  the  summons 
vv^as  served  at  a  particular  place,  and  there  is  no  averment 
of  any  other  service,  it  will  not  be  presumed  that  service 
was  also  made  at  another  and  different  place;  or  if  it 
appears  in  like  manner  that  the  service  was  made  upon  a 
person  other  than  the  defendant,  it  will  not  be  presumed, 
in  the  silence  of  the  record,  that  it  was  made  upon  the 
defendant  also.  Were  not  this  so,  it  would  never  be  possi- 
ble to  attack  collaterally  the  judgment  of  a  superior  court, 
although  a  want  of  jurisdiction  might  be  apparent  upon 
its  face;  the  answer  to  the  attack  would  always  be,  that 
notwithstanding  the  evidence  or  the  averment,  the  necessary 
facts  to  support  the  judgment  are  presumed."  ^ 

1  Galpinr.  Page,  18  Wall.  364  (1873). 


i 


CHAPTER    III. 

THE  REGULARITY  OF  OFFICLIL  ACTS. 

RULE  13. — The  presumption  is  that  one  who  is 
proved  to  have  acted  in  an  oflQcial  capacity  possessed 
the  necessary  and  proper  autliority.^ 

This  presumption  is  a  necessary  one  to  shield  the  acts  of 
an  officer  de  facto  until  the  courts  have  decided  the  ques- 
tion—  if  it  should  come  before  them  —  as  to  his  right  and 
title  to  the  office.     Thus,  in  aKansas  case,  the  commissioners 


'  The  application  of  tiiis  rule  is  found  in  very  many  cases,  involving  different 
powers  and  duties  —  as  that  he  was  regularly  appointed  (Eaton  r.  White,  18  Wis.  518 
(1SG4 ;)  or  elected  as  required  by  law.  Hathaway  v.  Addison,  48  Me.  440  (18G0).  See 
Cooper  V.  Moore,  44  Miss.  3S6  (1870);  Butler  v.  Ford,l  Cr.  &  M.  6G3  (1833).  In  re 
Murphy,  8  C.  &  P.  310  (1837),  Coleridge,  J.,  said:  "  With  regard  to  the  last  objection 
these  trustees  are  pubic  ofllcers.  They  all  acted  as  such  before  the  signing  of  this 
rate,  and  I  can  not  say  that  there  is  no  evidence  that  they  are  trustees.  If  the  proof 
of  their  once  acting  is  not  enough,  would  proof  of  ten  times  be  so?  Where  is  the 
line  to  be  drawn?  I  think  it  is  evidence  to  go  to  the  jury  that  they  were  trustees." 
James  v.  Brown,  5  B.  &  Aid.  243  (1821^ ;  R.  v.  Jones,  2  Camp.  131  (1809) ;  Mechanics', 
etc.,  lik.  V.  Union  Dk.,  22  Wall.  276  (1874).  "  The  rule  that  secondary  evidence  shall 
not  be  admitted  where  primary  evidence  is  attainable,  although  a  sound  general 
rule,  has  been  relaxed  in  some  cases  where  general  convenience  has  required  the 
relaxation.  The  character  of  a  public  officer  is  one  of  those  cases.  That  he  has 
acted  notoriously  as  a  public  officer  has  been  deemed  prima  facie  evidence  of  hia 
character,  without  producing  his  commission  or  appointment."  Jacob  v.  United 
States,  1  Brock.  523  (1821).  "  We  do  not  inquire  whether  the  marshal  had  fully 
proved  that  he  had  conformed  to  all  the  directions  of  the  law;  that  was  required 
before  he  entered  on  the  duties  of  his  office  ;  for  having  shown  his  commission  and 
also  his  recognition  as  marshal  Vy  the  Federal  courts,  we  presume  that  he  has  in 
other  respects  conformed  to  the  law,  so  far  as  conformity  is  essential  to  the  offering 
of  bis  commission."  Kilpatrick  v.  Frost,  2  Grant's  Gas.  190  (1SJ8) ;  Jay  v.  Carthage, 
48  Me.  353  (18G0) ;  Ilamlin  r.  Dungman,  5  Lans.  61  (1871) ;  Briggs  v.  Taylor,  35  Vt.  57 
(1SC2) ;  Fay  v.  Richmond,  43  Id.  25  (1870) ;  Wilcox  v.  Smith,  5  Wend.  231  (18.50)  ;  Salter 
f.  Applegate,23>'.  J.  (L.)  115  (1851) ;  Druse  v.  Wheeler,  22  Mich.  439  (1871)  ;  Shelby- 
ville  Trustees  v.  Town  of  Shelbyville,  1  Mete.  (Ky.)  54  (1858) ;  Landry  r.  Martin,  15 
La.  1  (1840);  Ex  parte  Strang,  21  Ohio  St.  610  (1871);  Brown  r.  Connelly,  5  Bhickf. 
390  (1S40) ;  Com.  v.  Fowler,  10  Mass.  290  (1813) ;  State  v.  Perkins,  24  X.  J.  (L.)  409 
(1851) ;  Nelson  v.  People,  23  X.  Y.  293  (18G1)  ;  State  r.  11111,2  Speers,  150  (1843) ;  People 
r.  Cook,  8  X.  Y.  67  (1353) ;  Swails  v.  State,  4  Ind.  517  (18.53)  ;  Woolsey  r.  Village  of 
Rnndout,4  Abb.  App.  Dec.  639  (1866);  Delphi  School  District  v.  Murray,  53  Cal.  29 
(1878) ;  Golduer  v.  Bressler,  105  111.  420  (18S3). 

(47) 


48  PRESUMPTIVE   EVIDEXCE.  [llULE    13. 

of  a  certain  county  paid  to  the  county  clerk  de  facto  the 
salary  of  the  office.     The  title  to  the  office  was  then  in  liti- 
gation and   the  courts  subsequently  decided  that  another 
person  was  the  rightful  incumbent.     After  taking  possession 
the  latter  brought  suit  against  the  commissioners  for  the 
salary  paid  to  the  wrongful  incumbent.     But  the  court  held 
that  the  action  did  not  lie,  the  payment  to  the  officer  de 
facto  having  been  proper,^  and  said:   *'  Now  as  W.  was  an 
officer  de  facto,  holding  under  color  of  title,  every  person 
had  a  right  to  recognize    him,  as   a  legal  and  valid  officer 
and  to  treat    him  as  such.     The  public,  Ihe    county,  the 
county  commissioners  and  private  individuals  had  a  right  to 
do  business  with  him  as  an  officer,  and  to  pay  him  for  his 
services,  if  they  chose,  without  taking  any  risk  of  having 
to  pay  for  such  services  a  second  time.     It  may  be  greatly 
to  the  interest  of  the  public  or  of  the  individuals  doing  busi- 
ness with  such  officer  to  pay  him  when  his  fees  or  salary 
become  due,  and  should  they  not  be  allowed  to  consult  the 
interest  of  the  public  and  their  own  interest  to  so  pay 
him?     It  is  not  their  fault  that  he  is  wrongfully  in  posses- 
sion of  the  office  and  how  are  they  to  know  whether  he  is 
in  possession  of  the  office  rightfully  or  wrongfully?     Are 
they  bound  to  know  who  is  entitled  to  the  office  in  advance 
of  any  final  adjudication  of  the  question  by  the  courts?      Are 
they  bound  to  anticipate  the  decision  of  the  courts  ?     And  are 
they  bound  to  decide  the  question  for  themselves  as  it  thus 
comes  up  incidentally  and  collaterally  in  the  payment  of  fees 
or  salary?     And  if  they  should  determine  that  the  courts 
would  eventually  decide  against  the  officer  de  facto,  must  they 
refrain  from  paying  him  any  fees  or  salary  at  perhaps  a 
great  loss  to  themselves?     In  a  Michigan  case,  Cooley,  C.  J., 
said:   'The  public  who  have  an  interest  in  the  continuous 
discharge  of  official  duty  and  whose  necessities  can  not  wait 
the  slow  process  of  a  litigation  to  try  the  title,  have  a  right 
to  treat  as  valid  the  official  acts  of  the  incumbent,  with  whom 

1  Commissioners  of  Saline  Co.  v.  Anderson,  20  Kas.  29S;  27  Am.  Rep.  171  (1873). 


nULE    13.]  IIEGULARITY    OF    OFFICIAL    ACTS.  49 

alone  under  the  circumstances  they  can  transact  business. 
This  rule  is  an  obvious  and  necessary  one  for  the  protection 
of  organized  society  for,  as  was  said  in  Weeks  v.  Ellis, ^  the 
affairs  of  society  can  not  be  carried  on  unless  confidence  were 
reposed  in  the  official  acts  of  persons  de  facto  in  office.''* 
And  private  individuals  in  controversies  between  themselves 
are  not  permitted  to  question  the  acts  of  an  officer  de  facto y 
for  the  further  reason  that  to  do  so  would  be  to  raise  and 
determine  the  title  to  his  office  in  a  controversy  to 
which  he  was  not  a  party  and  in  which  he  could  not  be 
heard." 

Illustrations. 

I.  In  an  action  brought  against  A.,  as  a  lieutenant  in  the  army  of  the 
United  States,  it  is  proved  that  he  has  acted  in  that  capacitj-.  His 
appointment  and  qualification  to  that  office  will  be  presumed.* 

II.  In  an  action  of  slander  in  his  calling  by  B.  against  W.,  B.  proves 
that  he  has  been  employed  as  an  attorney  in  several  suits  out  of  which 
tlie  cause  of  action  arose.  It  is  insisted  that  he  can  prove  that  he  is  an 
attorney  only  by  a  copy  of  the  roll  of  attorne3's.  But  from  proof  of  his 
acting  as  such  the  presumption  arises  that  he  has  been  duly  enrolled.* 

III.  An  action  is  brought  by  a  vestry  clerk  of  a  parish,  to  which  the 
defendant  pleads  that  the  plaintiff  is  not  a  vestry  clerk  as  alleged.  Evi- 
dence of  his  having  acted  as  vestry  clerk  is  heklpn'ma/acje  evidence  that 
he  has  been  appointed.^ 

IV.  In  an  action  of  assault  on  H.,  while  he  was  driving  certain  cattle 
of  M.  to  the  pound,  H.  testifies  that  he  has  acted  as  pound-keeper  to  the 
town  for  a  number  of  years.  The  presumption  is  that  he  has  been  duly 
appointed.* 

V.  It  is  required  to  justify  an  act  that  the  defendant  lias  authority,  as 
collector  of  taxes.  Proof  that  he  acted  as  collector  of  taxes  at  the  time 
raises  the  presumption  that  he  is  such  officer.' 


1  2  Barb.  325. 

2  Dcndit  r.  Auditors  of  Wayne  Co.,  20  Mirh.  176. 
»  Ilutchins  r.  Van  IJokkclen,  31  Me.  126  (lSd2). 

*  Berryman  v.  Wise,  4  Term  Hep.  366  (1791) ;  Pcarcc  r.  Whale,  5  B.  &  C.  3S  (1S26). 
6  McGahey  v.  Alston,  2  M.  &  W.  206  (1S36). 

•  Com.  V.  McCue,  16  Gray,  226  (1S60) ;  Briggs  f.  Taylor,  35  Vt.  57  (lt>C2) ;  Druse  f. 
Wheeler,  22 Mich.  439  (1S71). 

'  State  f.  Roberts,  52  X.  II.  492(1872);  Ronkendorfr  r.  Taylor,  4  Pet.  319  (1830); 
Tucker  v.  Aikcu,  7  X.  U.  113  (1851) ;  Faulkuer  i-.  Johnson,  11  M.  &  W.  5^1  (1843). 

4 


50  rRESUMPTIVE  EVIDENCE.        [kULE  13. 

VI.  la  an  action  of  ejectment  the  question  arises  Avhcther  certain  per- 
sons are  church  wardens  at  a  certain  time.  It  being  proved  that  they 
acted  as  such  at  that  time,  the  presumption  arises  that  they  hold  the 
offices. 1 

VII.  A  statute  empowers  a  master  in  chancery  '*  acting  under  appoint- 
ment by  the  lord  chancellor  to  be  given  for  that  purpose  "  to  issue  a  liat 
in  bankruptcy.  A  fiat  purporting  to  be  issued  by  a  master  by  virtue  of  such 
authority  is  proved  to  have  been  issued.  The  master  has  often  issued 
similar  flats.     The  presumption  is  that  he  has  the  necessary  authority. 

VIII.  A  statute  provides  that  a  person  receiving  enlisting  money  from 
an  officer  or  attested  soldier  shall  be  deemed  to  have  enlisted  as  a  soldier. 
A.  receives  enlistiug  money  from  B.,  who  is  proved  to  be  a  soldier.  The 
presumption  is  that  B.  is  an  "  attested  soldier"  within  the  statute.^ 

IX.  On  an  indictment  for  perjury  before  a  surrogate  in  the  ecclesiasti- 
cal courts  it  appears  that  the  oath  has  been  administered  by  one  Dr.  P., 
who,  it  is  proved,  has  acted  as  surrogate.  This  is  prima  facie  evidence  of 
his  having  been  duly  appointed  and  having  authority  to  administer  the 
oath.* 

X.  R.  is  indicted  for  embezzling  a  letter,  he  being  an  officer  of  the 
post-office.  Proof  that  R.  acted  as  an  officer  of  the  post-office  is  prima 
facie  sufficient.^ 

XI.  A  municipal  corporation  is  sued  for  services  for  which  the  trust- 
ees had  issued  a  certificate  of  indebtedness.  The  certificate  is  pro- 
duced, signed  by  the  parties  as  trustees.  The  presumption  is  that  they 
were  such  officers.* 

XII.  An  affidavit  to  a  bill  for  injunction  in  Maryland  is  made  before 
a  notary  of  the  District  of  Columbia.  The  presumption  is  that  he  has 
power  to  take  the  affidavit.' 

XIII.  A.  appears  in  court,  or  commences  an  action  as  attorney  for  B. 
The  presumption  is  that  A.  had  authority  from  B.** 

In  easel,  it  was  saidthat  the  evidence  introduced  (viz.,  that 
A.  had  performed  certain  acts  as  lieutenant),  must  be  deemed 

1  Bowley  v.  r>arnes,  8  Q.  B.  1037  (1846). 

»  Marshall  v.  Toms,  5  Q.  B.  115  (181.3). 

3  Walton  V.  Gavm,  16  Q.  B.  48  (1850). 

*  Rex  V.  Verelst,  .3  Camp.  432  (1813).  So  held  of  a  commissioner  for  taking  afll- 
davits  in  R.  v.  IlowarJ,  1  Moo.  &  Rob.  187  (1832). 

«  R.  V.  Rees,  6  C.  &  P.  C06  (1831). 

«  Woolsey  v.  Village  of  Rondout,  4  Abb.  App.  Dec.  630  (18GC). 

;'  Conollyt;.  Riley,  25  Md.  402  (1866). 

8  Osborn  v.  U.  S.  Bank,  9  AVheat.  738;  McAlexander  v.  Wright,  3  T.  B.  Mon.  ISO; 
Briflgoton  v.  Bennett,  23  Mo.  420 ;  Penobscot  Boon  Co.  v.  Lamson,  16  Me.  221 ;  Field 
V.  Proprietors,  1  Cush.  11 ;  Gaul  v.  Grout,  1  Cow.  113;  Rogers  v.  Park,  4  Ilum^h.  480; 
ReynoMs  v.  Fleming,  SO  Kas.  106  (1SS3) ;  Leslie  v.  Fisher,  62  111.  118;  Tally  v. 
Eeyuolds,  1  Ark.  99;  Aaderson  v.  Sutton,  2  Duv.  480  (1866). 


RULE    13.]  REGULARITY    OF    OFFICIAL    ACTS.  51 

sufficient  to  sliow  that  he  Avas  a  lieutenant  de  facto  and  that 
he  was  duly  qualitied  by  taking  the  oath  required  by  law, 
"  such  appointment  and  qualification  arc  presumed  from  the 
acts  done,  and  this  presumption  will  remain  until  it  is 
removed  by  other  evidence." 

In  case  II.,  Buller,  J.,  said  that  "  in  the  case  of  all  peace 
officers,  justices  of  the  peace,  constables,  etc.,  it  was  suffi- 
cient to  show  that  they  acted  in  these  characters,  without 
producing  their  appointments,  and  that  even  in  the  case  of 
murder.  The  excise  and  custom-house  officers  indeed  fall 
under  a  different  consideration,  but  even  in  those  cases  evi- 
dence was  admitted  both  in  criminal  and  civil  suits  to  show 
that  the  party  was  a  reputed  officer  prior  to  11  Geo.  3,  chap. 
30.  In  actions  brought  by  attorneys  for  their  fees,  the 
proof  now  insisted  on  has  never  been  required.  Neither  in 
actions  for  tithes  is  it  necessary  for  the  incumbent  to  prove 
presentation,  institution,  and  induction  ;  proof  that  he 
received  the  tithes  and  acted  as  the  incumbent  is  suffi- 
cient." 

"The  plaintiff,"  said  Baron  Parke,  in  case  III.,  "is  a 
public  parochial  officer;  and  the  rule  is  that  all  public  offi- 
cers who  are  proved  to  have  acted  as  such,  are  presumed  to 
have  been  duly  appointed  to  the  office  until  the  contrary  is 
shown." 

In  case  VI.  Patteson,  J.,  said:  "  It  is  a  recognized  prin- 
ciple that  a  person  acting  in  the  capacity  of  a  public  officer 
is  prima  facie  taken  to  be  so.  The  fact  does  not  of  itself 
prove  any  title,  but  only  that  the  person  fills  the  office." 

"The  same  rule  of  evidence,"  said  Patteson,  J.,  in  case 
VII.,  "  runs  through  all  offices,  from  that  of  a  judge  to  that 
of  a  vestry  clerk." 

In  case  IX.  Lord  Ellenborough  said:  "  I  think  the  fact 
of  Dr.  P.  having  acted  as  surrogate  is  sufficient  jjr/ma /acee 
evidence  that  he  was  duly  appointed,  and  had  competent 
authority  to  administer  the  oath.  I  can  not  for  this  purpose 
make  any  distinction  between  the  ecclesiastical  courts  and 
other  jurisdictions.     It   is  a  general   presumption  of   law 


52  PKESOIPTIVE    EYIDENCE.  [rULE    13. 

that  ji  person  acting  in  public  capacity  is  duly  authorized 
so  to  do." 

In  case  XII.  it  was  said:  "The  oath  that  the  several 
matters  and  things  stated  in  the  bill  are  true  was  adminis- 
tered and  duly  authenticated  by  a  notary  public  in  the  Dis- 
trict of  Columbia,  and  it  is  objected  to  for  the  reason  that 
this  officer  does  not  appear  to  have  been  authorized  by  law 
to  administer  oaths  in  such  cases.  This  objection  is  alto- 
gether technical  and  foreign  to  the  substantial  equities  dis- 
closed by  the  bill,  and  of  course  must  be  disposed  of  by  the 
established  rule  applicable  to  such  a  state  of  case.  All  that 
the  court  could  require  was  that  the  statements  of  the  bill 
should  be  verified  by  an  oath  of  one  or  both  of  the  appellees, 
administered  by  any  person  legally  competent  to  perform 
that  office,  and  had  the  oath  been  administered  by  any  notary 
of  this  State  its  sufficiency  could  not  have  been  questioned, 
as  that  class  of  officers  are  expressly  authorized  by  our  laws 
to  administer  such  oaths.  But  here  the  oath  was  taken 
before  a  notary  of  the  district,  in  respect  to  whose  legal 
competency  nothing  appears  on  either  side.  The  adminis- 
tration of  the  oath  and  authentication  of  it  by  his  notarial 
seal,  are,  however,  facts  from  which  we  should  naturally 
presume  that  these  acts  were  done  in  the  regular  exercise  of 
powers  conferred  by  the  laws  of  the  district." 

In  case  XIII.  it  was  said  by  Chief  Justice  Marshall : 
*'  Certain  gentlemen,  first  licensed  by  the  government,  are 
admitted  by  order  of  court,  to  stand  at  the  bar  with  a  gen- 
eral capacity  to  represent  all  suitors.  The  appearance  of 
any  one  of  these  gentlemen,  in  a  cause  has  always  been 
received  as  evidence  of  his  authority,  and  no  additional  evi- 
dence, so  far  as  we  are  informed,  has  ever  been  required. 
This  practice,  we  believe,  has  existed  from  the  first  estab- 
lishment of  our  courts,  and  no  departure  from  it  has  been 
made  in  those  of  any  State  or  of  the  Union."  In  Man- 
chester Bank  v.  Felloivs,^  the  court  say  :   "  Formerly  attor- 

1  28  N.  U.  304. 


J 


RULE    U.]         REGULARITY    OF    OFFICIAL   ACTS.  53 

neys  were  required  to  be  appointed  l)y  warrant  and  to  file 
their  powers  in  eourt,  but  that  practice  has  long  since  been 
disused,  and  a  mere  parol  retainer  is  sufEcient.  And  where 
an  action  is  commenced  by  a  regular  responsible  attorney, 
the  presumption  is  that  it  was  done  by  due  authority  of  the 
plaintiff.  It  is  not  necessary  to  show  authority  whether  a 
suit  be  by  an  individual  or  a  corporation,  in  order  to  the 
purposes  of  the  suit,  unless  it  is  called  for  by  the  defend- 
ant." So,  in  Hardin  v.  Uo-Yo-Po-Nubby,^  it  is  said: 
*'An  attorney  is  an  officer  of  the  court  and  responsible  to 
the  court  for  the  propriety  of  his  professional  conduct  and 
the  proper  use  of  the  privileges  he  has  as  such.  No  war- 
rant of  attorney  is  required  by  our  laws  or  practice  to 
enable  him  to  appear  for  and  to  represent  a  party  in  court. 
He  is  permitted  by  almost  universal  practice  in  this  country 
to  do  so  under  verbal  retainer,  and  it  is  only  in  cases  of 
clear  want  of  authority  or  abuse  of  his  privileges  that  he 
is  held  to  be  incompetent  to  institute  a  suit  or  to  represent 
a  party  in  court.  The  presumption  is  in  favor  of  his 
authority." 

RULE  14. — The  presumption  is  that  public  officers  do 
as  tlie  law  and  their  duty  requires  theni.^ 

Illustrations. 

I.  The  action  is  aajainst  a  carrier  for  two  cases  of  cutlasses  received, 
to  be  transported  from  Euglaud  to  a  foreign  country.     The  defense  is 


1  27  Ml88.  567. 

«  McDonald  v.  Nelson,  2  Cow.  139;  14  Am.  Dec.  43  (1823) ;  Fan-  v.  Sims,  Rich.  Eq. 
Oases,  122;  24  Am.  Dec.  3'.)C  (1832) ;  Terry  v.  Bleight,  3  T.  H.  Mou.  270;  IG  Am.  Dec. 
101  (182G).  Alabama— Uolleman  v.  De  My.se,  51  Ala.  95  (1S74);  State  Auditor  v. 
Jackson  County,  05  Ala.  142  (1880) ;  Perry  County  v.  R.  Co.,  Id.  391  (18S0) ;  Dudley  v. 
ChiltonCo.,06  Ala.  594  (1880);  Harvey  v.  Thorpe,  28  Ala.  251  (185G) ;  Brandon  v.  Snow,*, 
2  Stew.  (Ala.)  255  (1830).  Arkansas— Uudd  v.  Bctlison,  21  Ark.  583  (1860).  Cali- 
fornia—Den V.  Den,  C  Gal.  81  (ISoG) ;  Egery  v.  Buchanan,  5  Cal.  53  (1855) ;  Palmer 
r.  Baling,  8  Cal.  385  (1857i  ;  Curtis  r.  Ilernek,  14  Cal.  117  (1859)  ;  Hart  r.  Burnett,  15 
Cal.  530  (1860);  Guy  v.  Washburn,  23  Cal.  Ill  (18(^5);  Ilagar  v.  Supervisors,  47  Cal. 
222  (1874);  Baldwin  v.  Bordheimer,  43  Cal.  433  (H74);  Weaver  v.  Fairchild,50  Cal. 
360  (1375) ;  People  v.  Smith,  59  Cal.  3G5  (1881) ;  Upham  v.  Hoskins,  62  Cal.  250  (1882). 
But  see  Keane  t'.  Cannovan,  21  Cal.  291  (18C3).  Connecticut  — Booth  v.  Booth,  7 
Conn.  350  (1829) ;  West  School  Dist.  v.  Merrills,  12  Coun.  437  (183S) ;  Cone  v.  City  of 


54  rRESUMrTi\'E  evidence.  [rule  14. 

made  that  cutlasses  are  prohibited  from  being  exported  without  a 
license.  It  being  proved  that  they  wei*e  eutered  at  the  custom-house,  the 
license  is  presumed. ^ 

II.  It  is  the  duty  of  an  officer  to  make  certain  entries  in  books.  The 
books  with  such  entries  signed  with  his  name  are  produced.  The  pre- 
sumption is  that  he  made  them.^ 


Hartford,  28  Conn.  363  (1S59).  Florida  — Dupuis  v.  Thompson,  16  Fla.  70  (1877). 
Georgia  — J efTerson  v.  Mayor,  7  Ua.  181  (181'.));  Craig  r.  Adair,  22  Ua.  373  (1857); 
Pausch  V.  Guerrai-d,  67  Ga.  319  (1881) ;  Roberts  v.  Cook,  68  Ga.  325  (1882) ;  Healey  v. 
Dean,  68  Ga.  5U  (1882).  Illinois  —Conwell  v.  Walkins,  71  111.  489  (1874) ;  Gilbraith 
V.  Littiech,  73  Iil.  209  (1874) ;  Garden  City  lus.  Co.  v.  Stayart,  79  111.  259  (1875) ;  Bal- 
lance  v.  Underbill,  4  111.  453  (1842) ;  Glancy  v.  Elliott,  14  111.  456  (1853) ;  Buckmaster 
V.  Job,  15  111.  329  (1853) ;  Dunlop  v.  Daugherty,  20  111.  397  (1858) ;  Dyer  r.  Flint,  21  111. 
SO  (1859) ;  Uives  v.  Kumler,  27  111.  291  (1802) ;  Todemier  v.  Aspinwall,  43  III.  401 
(1867) ;  Rosenthal  v.  Renick,  44  111.  202  (1867).  Indiana  — Smith  v.  Stewart,  5  Ind, 
220  (1854) ;  State  v.  Carter,  6  Ind.  37  (1854) ;  Culbertson  v.  Milhollin,  22  Ind.  362  (1864) ; 
Feaster  v.  WoodHll,  23  Ind.  403  (1864) ;  Jenkins  v.  Parkhill,  25  Ind.  473  (1865) ;  City  of 
Logansport  v.  Wright,  25  Ind.  512  (1865) ;  Miller  v.  Hays,  26  Ind.  380  (1866) ;  Jackson 
School  Tp.  V.  Hadley,  59  Ind.  534  (1877) ;  Ward  v.  State,  48  Ind.  290  (1874).  Iowa- 
Cobb  V.  Newcomb,  7  Iowa,  43  (1858) ;  State  v.  Cress,  10  Iowa,  101  (1859) ;  Dollarhide 
V.  Muscatine  Co.,  1  G.  Greene.  158  (184S) ;  Rowan  v.  Lamb,  4  G.  Greene,  408  (1854). 
Kentucky  — Ellis  v.  Carr,  1  Bush,  527  (1866)  ;  Phelps  v.  Ratcliffe,  3  Bu.^h.334  (1867); 
"Warfleld  v.  Brand,  13  Bush,  77  (1877)  ;  Buckner  v.  Bush,  1  Duv.  394  (1804) ;  Hickman 
r.  Boffman,  Ilardin,  349  (1808) ;  Webber  v.  Webber,  1  Met.  (Ky.)  18  (1858) ;  Case  v. 
Colston,  1  Met.  (Ky.)  145  (1858) ;  Vincent  v.  Eaves,  1  Met.  (Ky.)  248  (1858).  Louis- 
iana—Dunlap  V.  Sims,  2  La.  Ann.  237  (1847) ;  Hewitt  v.  Stephens,  5  La.  Ann.  640 
(1850) ;  Re  Lauve,  6  La.  Ann.  5.30  (1851) ;  City  of  Mew  Orleans  v.  Gottschalk,  11  La. 
Ann.  69  (1856);  Waddell  v.  Judson,  12  La.  Ann.  14  (1857);  Nichols  v.  McCall,  13 
La.  Ann.  215  (1858);  Webber  i7.  Gottschalk,  15  La.  Ann.  370  (1860);  Tempdeton  v. 
Morgan,  16  La.  Ann.  438  (1862) ;  City  of  New  Orleans  v.  Halpin,  17  La.  Ann.  185  (1865) ; 
Ledoux  V.  Jamieson,  18  La.  Ann.  130  (186C) ;  O'llara  v.  Blood,  27  La.  Ann.  57  (1875) ; 
Tunstall  v.  Parish  of  Madison,  30  La.  Ann.  471  (1878) ;  Rayne  v.  Terrell,  33  La.  Ann. 
812  (1881).  Massachusetts  — Pratt  v.  Lamson,  6  Allen,  4.57  (1863);  Blanchard  v. 
Young,  11  Cush.  341  (1853) ;  Bruce  v.  Holdeu,  21  Pick.  187  (1839) ;  Jones  v.  Aldermen, 
104  Mass.  461  (1870)  ;  Gay  v.  Southworth,  113  Mass.  333  (1873);  Clapp  v.  Thomas,  5 
Allen,  158.  Maine  — Shorey  v.  Hussey,  32  Me.  579  (1851) ;  Jones  v.  Fletcher,  41  Me. 
254  (1856) ;  Randall  v.  Bowden,48  Me.  37  (1860).  But  in  County  of  Hancock  v.  Eastern 
River  Co.,  20  Me.  72  (1841),  it  was  said:  "  Where  two  are  required  to  act,  except  in 
certain  cases,  the  law  does  not  presume  that  the  case  contemplated  exists,  but  the 
contrary."  Maryland  —  Wellersburg,  etc.,  Co.  r.  Bruce,  6  Md.  457  (1854).  Mich- 
ig-an- Hourtienne  v.  Schnoor,  33  Mich.  274  (1876) ;  Sui)ervisor.s  of  Houghton  Co.  v. 
Roes,  34  Mich.  481  (1876);  Perkins  v.  Nugent,  45  Mich.  156  (1881);  Cooper  v.  Gran- 
berry,  33  Mich.  117  (18.57) ;  Jakway  v.  Lenison,  46  Mich.  521  (1881) ;  First  Nat.  Bk.  v. 
St.  Joseph,  46  Mich.  527  (1881).  Minnesota  — Goener  v.  Woll,  26  Minn.  154  (1879). 
Mississippi  — Wray  v.  Doe,  10  S.  &  M.  452  (1848);  Dyson  v.  State,  26  Miss.  303 
(1853) ;  Nebbett  v.  Cunningham,  27  Miss.  292  (1854) ;  Harris  v.  McKissack,  34  Miss. 
170  (18.^7) ;  Wright  v.  State, 50  Miss.  332  (1874) ;  Waddell  v.  Magee,  53  Miss.  687  (1876). 
Missouri  — McNair  v.  Hunt,  5  Mo.  300  (1838) ;  Trotter  v.  St.  Louis  Public  Schools, 
9  Mo.  69  (1845) ;  Nolley  v.  Callaway  County  Court,  11  Mo.  447  (1848) ;  Grayson  v.  Wed- 
dle,  G3  Mo.  523  (1876);  Henry  v.  Dulle,  74  Bio.  413  (1881).  Nebraska— Tecumseh 
Town  Site  Case,  3  Neb.  284  (1874).  New  Hampshire  —  Wheelock  v.  Hall,  3  N.  H. 
310  (1825) ;  Bias  v.  Badger,  6  N.  H.  393  (1833) ;  Wells  v.  Burbank,  17  N.  H.  393  (1845) ; 

1  Van  Omeron  v.  Doweck,  2  Camp.  44  (1809). 
>  Taylor  v.  Cook,  8  Price,  653  (1820). 


RULE    14.]         REGULARITY   OF   OFFICIAL   ACTS.  55 

III.  Tlie  charter  of  a  municipal  corporation  requires  unanimity  in  the 
mayor  and  counsel  in  passing  an  ordinance.  An  ordinance  is  allef;ed  to 
have  been  "  duly  made  by  tlie  mayor  and  council."  The  pre&umptiou  is 
that  It  was  made  by  a  unanimous  vote.^ 

IV.  A  statute  requires  the  selectmen  of  a  town  to  be  elected  by  ballot. 
The  record  does  not  show  how  they  were  elected.  The  presumption  is 
that  they  were  elected  by  ballot.* 


Thornton  v.  Oampton,  18  N.  IT.  27  (1845) ;  State  v.  Alstoad,  18  N.  H.  59  (1846) ;  Kim- 
ball V.  Lamprey,  1!)  N.  11.  21.")  (184S);  S<-aminon  v.  Sc.immon,  28  N.  H.  419  (1'n'j4)  ; 
Gordon  r.  Xorris,  29  N.  II.  198  (ls.)4).  New  York  — Supervisors  of  Livingston  «. 
White,  30  Barb.  72  (1S59) ;  Atty.-Gen.  v.  Keformcd  Protestant  Dutch  Church,  33 
Barb.  303  (18G1) ;  People  v.  PhcEnix  Bk.,  4  Bosw.  3G4  (1859) ;  Arent  v.  Squire,  1  Daly, 
347  (1SC:J)  ;  Wood  v.  Terry.  4  Lans.  80  (1871) ;  Rector,  etc.,  of  Trinity  Church  v.  Ilig- 
gins,  4  Kobt.  I  (186G) ;  Brewster  r.  Striker,  2  N.  Y.  19  (184S) ;  Leland  v.  Cameron,  31 
N.  Y.  115  (1865);  People  v.  Snyder,  41  N.  Y.  397  (1869);  Smith  v.  Hill,  22  Barb.  6.56 
(1856).  North  Carolina  — State  v.  Lamon,  3  Hawks,  175  (1824) ;  Uawls  v.  Deans,  4 
Hawks,  299  (ISiC).  Ohio—  Ward  r.  Barrows,  2  Ohio  St.  241  (1853).  Oreg-on  — Dcn- 
nison  v.  Story,  1  Ores>'a,  272  (1S.")9) ;  Dolph  v.  Barney,  5  Oregon,  191  (1874).  Penn- 
sylvania-Cuttle t'.  Brockway,  24  Pa.  St.  145  (1851) ;  City  of  Alleghany  i'.  Kelson, 
25  Pa.  St.  332  (18.55) ;  Lytle  r.  Colts,  27  Pa.  St.  193  (185G) ;  Iluzzard  v.  Trego,  35  Pa.  St. 
9  (1859) ;  Kelly  v.  Creen,  53  Pa.  St.  303  (ISGG) ;  Lackawanna  Iron  Co.  v.  Falcs,  55  Pa. 
St.  90  (18G7) ;  Pittsburg  r.  Walter,  69  Pa.  St.  3G5  (1871) ;  Lccdom  v.  Lombaert,  80  Pa.  St. 
381  (187G).  South  Carolina  — Ex  parte  Hanks,  1  Cheves  (S.C.),20:?  (1840) ;  Boulw.ire 
V.  Witherspoon,  7  Uich.  (Kq.)  450  (1855) ;  Douglass  v.  Owens,  5  Rich.  (L.)  534  (lvS52) ; 
State  V.  Hatcher,  11  Ilicli.  (L.)  525  (1S.)8) ;  State  v.  Harden,  11  S.  C.  3G0  (1878) ;  Alston 
V.  Alston,  4  S.  C.  IIG  (1872).  Tennessee -Woods  v.  State,  G  Baxt.  426  (1873) ;  Davis 
V.  State,  6  Baxt.  429  (1873) ;  Webb  r.  Fritz,  8  Baxt.  218  (1874)  ;  Chapman  v.  Howard,  3 
Lea,  3G3  (1879).  Texas  — Houston  v.  Perry,  3  Tex.  390  (1848);  Linn  v.  Montross,5 
Tex.  511  (1851) ;  Edwards  v.  James,  7  Tex.  (App.)  372  (1851) ;  Porter  v.  Parker,  8  Tex. 
23  (1852) ;  Saunders  v.  Gilmer,  8  Tex.  295  (1852) ;  Lee  v.  Wharton,  11  Tex.  61  (18,53) ; 
Reid  r.  lleid.  11  Tex.  585  (1854) ;  Sadler  v.  Anderson,  17  Tc.x.  248  (1S5G) ;  Baker  v. 
Coe,  20  Tex.  429  (18.57) ;  Jones  v.  Muisbach,  26  Tex.  2:55  (1862) ;  AVillis  v.  Lewis,  28  Tex. 
185  (1866) ;  Farrar  v.  State,  5  Tex.  (App.)  489  (1879) ;  Prior  v.  State,  Id.  Vermont  — 
Drake  v.  Mooney,  31  Vt.  617  (1859);  Stannard  i'.  Smith,  40  Vt.513  (1868).  Virginia  — 
Com.  V.  Garth,  3  Call,  6  (1801) ;  Davis  v.  Johnson,  3  Munf.  81  (1811) ;  Paine  v.  Tut- 
wiler,  27  Gratt.  440  (1876).  Wisconsin  — Gillett  v.  Gillett,  9  Wis.  194  (1859) ;  Stan- 
dish  r.  Flowers,  16  Wis.  110  (18C2) ;  Williams  v.  Troop,  17  Wis.  463  (1863) ;  Mills  v. 
Johnson,  17  Wis.  598  (18G:i) ;  Edson  v.  Ilaydon,  18  Wis.  627  (1864) ;  McCutchin  v.  Piatt, 
22  Wis.  561  (1868);  Lyon  v.  Green  Bay,  etc.,  R.  Co.,  42  Wis.  538  (1877).  United 
States  — Russell  v.  Beebe,  Hempst.  704  (1855);  Johnson  v.  U.  S.,  14  Ct.  of  CI.  276 
(1878) ;  Danlop  v.  Munroe,  1  Cranch  C.  C.  .537  (1809) ;  U.  S.  v.  Carberry,  2  Cranch  C.  C. 
358  (1822);  Winter  t>.  Simonton,  3  Cranch  C.  C.  104  (1827);  Den  v.  Hill,  McAll.  480 
(1859) ;  Ruggles  v.  Bucknor,  1  Paine,  358  (1824) ;  The  Eureka  Case,  4  Sawy.302  (1877) ; 
U.  S.  V.  Earhart,  4  Sawy.  215  (1877)  ;  Wilkes  v.  Dinsnian,  7  How.  89  (1849) ;  Minter  t-. 
CroTimelin,  18  How.  87  (1855) ;  Delassus  v.  U.  S.  9  Pet.  118  (1835) ;  Strother  i\  Lucas, 
12  Pet.  410  (1838). 

1  City  of  LMuisville  r.  Hyatt,  2  B.  Mon.  180  (1841). 

*  Mussey  r.  White,  3  Mo.  200  (1825).  That  the  acts  of  the  ofTiccrs  of  a  municipal 
corporation  ore  pre^^umcd  to  be  regular,  see  Bassett  v.  Pirtcr,  lOCush.418  (1852); 
Spurr  V.  Bartholomew,  2  Mete.  479  (1841).  As  that  a  proprietory  meeting  was  con- 
vened as  required  by  law.  Society  f.  Young,  2  N.  II.  310  (1820) ;  Copp  r.  Lamb,  12  Me- 
312  (183.5);  Inhabitants  r.  Root,  13  Pick.  318  (1S36)  ;  Cobleigh  r.  Young,  15  N'.  11.  493 
(1844).    And  compare  Clark  v.  Ward  well,  65  Mo.  61  (1867). 


56  PRESUJIPTIVE   EVIDENCE.  [rULE    14. 

V.  A  petition  iu  baukruptcy  is  verifled  b\'  an  affidavit  sworn  to  before 
the  clerk  of  a  Uuifed  St'atea  coui't.  Such  clerks  are  not  authorized  to 
take  affidavits  out  of  court.  The  presumption  is  that  the  affidavit  was 
made  in  court. ^ 

VI.  To  entitle  deeds  to  be  read  in  evidence,  they  are  required  to  be 
acknowledged  and  recorded  in  a  certain  manner.  A  deed  is  produced 
purporting  to  have  been  acknowledged  before  a  justice  of  the  peace.  The 
presumption  is  that  the  registrar  of  deeds  who  made  the  record  had 
sufficient  evidence  of  the  official  character  of  the  magistrate  to  entitle  the 
deed  to  be  recorded.* 

VII.  It  is  proved  that  a  sheriff  sold  certain  land  and  executed  a  deed, 
but  it  is  not  shown  that  he  had  previously  levied  on  the  land.  This  will 
be  presumed.^ 

VIII.  An  execution  against  C.  Is  delivered  to  a  deputy  sheriff  in  Decem- 
ber, returnable  the  third  Tuesday  in  February,  In  March,  C.  sells  a  pair 
of  horses  which  he  had  in  his  possession,  when  the  execution  was  deliv- 
ered and  before  the  return  day.  Afterward  the  deputy  sheriff  sells  the 
horses  at  sheriff's  sale  under  the  execution.  In  an  action  by  the 
purchaser  from  C.  it  will  be  presumed  that  a  levy  has  been  made  before 
the  return  day.* 

IX.  The  seal  of  a  court  of  a  foreign  State  is  affixed  to  a  paper  by 
impression  without  wax.  The  presumption  is  that  the  sealing  is  proper 
according  to  the  laws  of  the  State. ^ 

X.  A  bill  is  filed  to  set  aside  a  judgment  entered  against  two  defend- 
ants by  one  of  them  who  alleges  that  he  was  never  sei'ved  with  process 
in  that  suit.  It  appears  that  appearance  was  entered  by  some  one.  The 
presumption  is  that  it  was  entered  by  an  attorney  duly  authorized.^ 

XI.  On  the  walls  of  a  town  in  the  military  occupation  of  an  enemy 
is  posted  a  proclamation  purporting  to  be  signed  by  the  general  in 
command.  The  presumption  is  that  it  was  done  by  order  of  the 
commander.'' 

XII.  Under  a  statute  an  indenture  of  apprenticeship  is  not  valid 
unless  notice  has  been  given  to  certain  officers  by  certain  other  officers. 
An  indenture  being  produced  it  will  be  presumed  that  the  notice  was 
given. 8 


1  Schermerhorn  v.  Talman,  14  N.  Y.  93  (1856). 

«  Forsaith  v.  Clark,  21  N.  II.  409  (1S50) ;  Willis  i-.  Lewis.  28  Tex.  185  (1856) ;  Titus  v. 
Kimbro,  8  /rf.  210  (18J2). 

3  Juckson  V.  Shafer,  11  Johns.  317. 

*  Hartwell  V.  Root,  19  Johns.  348  (1822) ;  10  Am.  Dec.  233  (1822). 

6  Stale  V.  Lawson,  14  Ark.  114  (1853). 

«  Stubbs  V.  Leavitt,  30  Ala.  352  (1857). 

'  r.ruce  V.  Nicopulo,  11  Ex.  129  (1855). 

8  Kuig  V.  Whiston,  4  Ad.  &  Ell.  607  (1836). 


RULE    14.]  IIEGULARITY   OF   OFFICIAL   ACTS  57 

XIII.  Certain  proceedings  of  a  municipal  corporation  are  allejrcd  to 
have  talcon  place  at  an  adjourned  meeting.  Tiie  presumption  is  tliut  the 
meeting  was  properly  and  regularly  adjourned.* 

XIV.  A  docket  fee  has  been  taxed  by  the  officers  of  a  court.  Tiie  pre- 
sumption is  that  this  was  legal. ^ 

XV.  The  presumption  is  that  a  clerk  issues  an  execution  only  under 
the  direction  of  some  person  authorized  to  control  the  writ.' 

XVI.  One  of  tlie  witnesses  to  a  deed  is  a  magistrate.  The  presumption 
is  that  he  saw  it  legally  executed.* 

XVII.  A  return  of  service  of  a  summons  of  an  ofliccr  is  not  dated. 
The  presumption  is  that  it  was  served  within  the  legal  time.* 

XVIII.  The  law  requires  that  an  administrator  shall  settle  up  an 
estate  within  two  years.  The  presumption,  in  a  particular  case,  is  that 
a  particular  administrator  has  done  so.* 

XIX.  A  clerk  In  making  a  transcript  of  a  record  for  the  Supremo  Court 
copies  therein  a  mortgage  to  which  is  appended  a  certificate  of  acknowl- 
edgment purporting  to  have  been  made  by  a  notary  public.  Opposite  to 
the  signature  at  the  end  of  the  certificate,  the  copyist  places  a  scrawl  and 
the  word  "seal."  The  presumption  is  th:it  this  was  a  representation  of 
the  notary's  official  and  not  his  private  seal.'' 

XX.  An  execution  is  issued  and  placed  in  the  hands  of  the  sheriff,  who 
levies  upon  certain  real  estate.  It  is  found  several  years  afterwards  in 
the  clerk's  office.  The  presumption  is  that  the  sheriff  returned  it  there 
as  required  by  law  to  do.® 

XXI.  There  is  no  place  of  service  mentioned  in  a  constable's  return. 
The  presumption  is  that  it  is  within  his  precinct.^ 

XXII.  A.  is  a  public  surveyor  regularly  appointed.  The  presumption 
is  that  he  has  a  knowledge  of  the  art  of  surveying. ^^ 

XXIII.  A  party  testifies  that  at  the  time  of  filing  a  mortgage  for  record 
no  other  incumbrance  on  the  property  appeared  on  the  books.  The 
recorder  testifies  that  it  did.  The  presumption  is  iu  favor  of  the 
recorder. 11 


1  Freeholders  v.  State.  24  N.  J.  (L.)  718  (1853). 
«  Governor  v.  Rid^'way,  12  111.  14  (1850). 
«  Niantic  Bankr.  Dennis,  37  111.  381  (1S(>5). 

*  Durkiiis  r.  Moore,  17  Ga.  62  (1855) ;  lliguflcld  v.  Phelps,  50  Ga.  59  (1874). 
6  Ueid  V.  Jordon,  56  Ga.  282  (1876). 
«  Ingram  v.  Ingram,  4  Jones  (L.),  188  (1S5C) 
'  Moore  v.  Titman.  33  111.  3.5S  (1S64). 
8  Conwell  I'.  Watkins,  71  III.  488  (1874). 
»  Richardson  v.  Smith,  1  Allen,  541  (1861). 
1"  Asho  r.  I.anham,  5  Iiul.  4:54  (1854). 
n  Vaudercock  v.  Baker,  48  Iowa,  193  (1878). 


58  PEESU3IPTIVE   EVIDENCE.  [llULE    14. 

XXIV.  A.  sues  B.,  an  examiner  of  title,  for  damages  for  failing  to 
show  the  fact  of  a  judgment  and  sale  of  the  land.  The  judgment  and  sale 
are  proved,  but  there  is  no  proof  that  they  were  recorded.  The  presump- 
tion is  that  the  officers  did  their  duty  and  recorded  them.i 

XXV.  The  law  requires  land  sold  upon  execution  to  be  first  appraised. 
Certain  land  is  sold  on  an  execution.  The  presumption  is  that  it  was 
properly  appraised.* 

5;XVI.  An  executor  makes  oath  that  all  legal  taxes  due  by  the  deceased 
have  been  paid  by  him  since  he  qualitied  as  executor,  but  can  not  swear 
as  to  taxes  before  the  death  of  the  testator.  The  presumption  is  that 
they  also  have  been  paid.^ 

So  a  court  will  presume  that  the  Legislature  acted  prop- 
erly.* An  act,  for  example,  is  found  among  the  printed 
laws  bearing  the  approval  of  the  Governor.  The  presump- 
tion is  that  it  was  constitutionally  passed.^  So  verbal 
changes  were  made  in  a  constitution  after  it  was  reported  by 
the  revising  committee.  These  are  presumed  to  have  been 
authorized.®  Again,  a  statute  gives  a  certain  right  of  action 
to  children  or  their  "legal  representatives."  In  a  subse- 
quent code  giving  a  similar  action  these  words  are  omitted. 
The  presumption  is  that  the  Legislature  intended  to  omit 
these  words,''  and  generally  a  statute  is  presumed  to  be  con- 
stitutional,^ and  so  a  municipal  ordinance  is  presumed  to  be 
regular.^ 

In  a  Georgia  case  the  court  say  :  "  The  next  error  alleged 
was  the  admission  of  the  exemplified  copy  of  the  will.  It 
came  as  a  copy  of  a  record  from  the  ordinary's  office  of 
Chatham  County.  It  could  not  have  got  on  record  unless 
it  had  been  proven,  and  the  presumption  is  that  it  was  duly 


1  Chase  v.  Heaney,  70  111.  263  (1873). 

2  Mercer  v.  Doe,  6  Ind.  80  (1854) ;  Evans  w.  Ashby,  22  Ind.  15  (1864),  and  see  Banks 
V.  Bales,  16  Ind.  423  (1861) ;  Piel  v.  Braycr,  30  Ind.  332  (1868). 

a  Aikin  v.  Altoona  Iron  Works,  43  Ga.  464  (1871). 

*  Supervisors  of  Schuyler  Co.  v.  People,  25  111.  183  (1860) ;  Illinois  Cent.  R.  Co.  v. 
Wren,  43  111.  77  (1867). 

t  Bedard  v.  Hall,  44  111.  91  (1867). 

«  Walsh  V.  City  Council,  67  Cia.  2!)3  (1881). 

7  Miller  V.  Southwestern  U.  Co. ,55  Ga.  143  (1875). 

8  South.,  etc..  K.  Co.  v.  Morris,  65  Ala.  197  (1880) ;  Sadler  v.  Langham,  34  Ala.  311; 
Allison  V.  Thomas,  44  Ga.  640  (1872). 

9  Van  Uook  v.  City  of  Selina,  70  .\Ja.  361  (1331). 


RULE    li.]         REGULARITY   OF   OFFICIAL   ACTS.  59 

admitted  to  probate."  ^  "  We  must  presume,"  it  is  said 
in  another  case,  "  th;it  all  alterations  or  interlineations 
made  or  appearing  in  a  public  record  were  done  in  a  proper 
manner  by  the  person  having  tiio  care  and  custody  thereof, 
or  by  some  one  in  his  office  having  authority  so  to  do.  In 
other  words,  the  mere  fact  that  a  change  has  been  made, 
in  the  absence  of  evidence  showing  the  contrary,  must  be 
presumed  to  have  been  done  in  a  proper  and  legiti- 
mate manner."  ^  And  in  another,  *'  When  notices,  aflS- 
davits,  etc.,  are  directed  to  be  preserved  in  a  given  office, 
a  failure  to  find  them  there  raises  a  presumption  that  no 
such  documents  ever  existed."  ^ 

In  another  case  it  is  said:  ♦*  We  hold  it  to  be  a  sound 
principle,  supported  by  both  justice  and  reason  that  -svhcn 
there  is  a  power  of  appointment  which  has  been  exercised, 
and  there  be  a  legal  and  an  illegal  mode  of  exercising  it, 
and  the  proof  leaves  it  doubtful  which  has  been  used,  the 
legal  presumption  in  favor  of  innocent  purchasers  or  meri- 
torious claimants  is  that  it  has  been  the  legal  one."  * 

In  case  I.  Lord  Ellenborough  said  that  if  it  was  proved 
that  these  cutlasses  were  entered  at  the  custom-house,  he 
would  presume  omnia  rite  acta. 

*'  We  are  of  opinion,"  it  was  said  in  case  III.,  "  that  the 
order  as  exhibited  should  j9/*//;m  facie  be  presumed  to  have 
been  made  in  the  mode  prescribed  by  the  charter.  As 
functionaries  acting  openly  for  the  welfare  of  the  local  pub- 
lic and  under  official  responsibility,  the  acts  of  the  mayor 
and  counsel  should  in  some  deforce  be  accredited  as  reirular 
and  legal ;  usurpation  without  an  apparent  motive  should 
not  be  presumed  ;  unanimity  was  indispensable  to  the  legal 
authority  to  make  the  order — the  order  was  made  by  the 
mayor  and  council  and  therefore  upon  the  pleadings  in 
the  case  we  feel  authorized  to  presume  that  the  order  was 


1  Thiirsby  v.  Mrcr9.  57  Ga.  ISS  (1870). 

2  Hoininel  v.  Devinney,  31)  ^Uch.  ,V22  (187R). 

»  Hall  t'.  Kellngg,  16  Mich,  r-f) ;  irorrill  v.  Douglass,  H  Kas.  304  (1S75). 
*  Marshall  v,  Stevens,  8  Humph.  159 ;  47  Am.  Dec.  601  (1847). 


60  PRESUMPTIVE   EVIDENCE.  [RULE    14. 

made  by  the  unanimous  vote  of  the  mayor  and  councilmcn 
in  council." 

In  case  XIII.  it  was  said :  "  I  am  aware  of  no  principle 
which  forbids  us  to  act  upon  the  presumption  applicable  to 
courts  of  justice,  and  I  think  to  public  bodies  intrusted 
with  general  powers  like  these  boards  that  the  adjournment 
was  regularly  made."  So  the  law  presumes  that  all  officers 
intrusted  with  the  custody  of  public  files  and  records  will 
perform  their  official  duty  by  keeping  them  safely  in  their 
offices.  Where  a  paper  is  not  found  where,  if  in  existence, 
it  ought  to  be  deposited  or  recorded,  the  presumption, 
therefore,  arises  that  no  such  document  has  ever  been  in 
existence  ;  until  this  presumption  is  rebutted  it  must  stand 
as  proof  of  its  non-existence.^ 

In  case  XXVI.  it  was  said:  '<  The  testator  could  not 
swear  to  that  fact  for  the  obvious  reason  that  he  was  dead. 
The  presumption,,however,  is,  in  the  absence  of  any  evi- 
dence to  the  contrary,  that  the  testator  when  in  life  per- 
formed all  his  legal  and  social  duties,  and  therefore  paid  all 
the  legal  taxes  chargeable  by  law." 

Sub-Rule  1. — And  the  presumption  ill  Hides  13  and  14 
prevails  as  to  the  authority  and  acts  of  private  officers. 

Illustrations. 

I.  An  act  incorporating  a  bank  requires  the  bonds  of  officers  to  be 
approved  by  the  board  of  directors.  An  action  is  brought  on  the  bond 
of  a  cashier  of  a  bank.  There  is  no  record  of  its  approval  by  the  board. 
This  will  be  presumed.* 

IT.  An  action  is  brought  against  the  maker  of  a  note  made  to  a  cor- 
poration indorsed  to  the  plaintiff  "  G.  II.  F.,  president."  The  presump- 
tion is  that  the  indorser  had  authority  to  make  the  indorsement. ^ 

III.  Certain  persons  are  proved  to  have  acted  as  officers  of  a  corpora- 
tion.   They  are  presumed  to  be  rightly  in  office.* 


1  Hall  V.  Kellogg,  16  Mich.  135  (1867) ;  Piatt  v.  Stewart,  10  Id.  300. 

2  P.aiik  of  the  United  States  v.  Dandridge,  12  Wheat.  Gl  (1827). 

3  Cabot  V.  Given,  i.5  Me.  144  (18r)S).    And  see  Stevenson  v.  Hoy,  43  Pa.  St.  191 
(1862)  ;  Seeds  v.  Kahler,  76  Id.  203  (1874). 

*  Hilliard  v.  Gould,  34  N.  H.  230  (1856). 


RULE    14.]         REGULARITl'   OF   OmCIAL   ACTS.  61 

IV.  A  complaint  is  filed  in  court  in  tlie  n.'inie  of  a  State  and  signed  hv 
certain  attorneys.  The  presumption  is  that  they  had  the  authority  of  the 
Governor  to  do  so.* 

v.  A  suit  is  brought  in  the  name  of  a  corporation.  Its  assent  is  pre- 
sumed.* 

VI.  The  seal  of  a  corporation  is  afTixed  to  a  contract  produced.  The 
presumption  is  that  this  was  done  by  authority.* 

VII.  B.,  who  was  superintendent  of  wharves,  ordered  the  removal  of 
a  brig  from  the  plaintiff's  wharf,  where  she  was  discharging,  to  make 
room  for  another  vessel  to  lie  at  au  adjoining  wharf,  whereby  the  plain- 
tiff lost  certain  wharfage.  In  an  action  by  him  against  B.  the  presump- 
tion is  that  B.  acted  within  his  duty  and  without  malice.* 

In  case  I.  Mr.  Justice  Story  has  given  an  exhau.stive 
review  of  tliis  principle.  *'By  the  general  rules  of  evi- 
dence," said  he,  *'  presumptions  are  continually  made  in 
cases  of  private  persons,  of  acts  even  of  the  most  solemn 
nature,  "when  those  acts  are  the  natural  result  or  necessary 
accompaniment  of  other  circumstances.  In  aid  of  this  salu- 
tary principle  the  law  itself,  for  the  purpose  of  strengthen- 
ing the  infirmity  of  evidence  and  upholding  transactions 
intimately  connected  with  the  public  peace  and  the  security 
of  private  property,  indulges  its  own  presumptions.  It 
presumes  that  every  man  in  his  private  and  official  character 
does  his  duty  until  the  contrary  is  proved  ;  it  will  presume 
that  all  things  are  rightly  done  unless  the  circumstances  of 
the  case  overturn  this  presumption,  according  to  the  ma.xim, 
omnia  proesumunter  rite  et  solemnitur  esse  acta  donee  pvohe- 
tur  in  contrarimn.  Thus  it  will  presume  that  a  man  acting 
in  a  public  office  has  been  rightly  appointed  ;  that  entries 
found  in  public  books  have  been  made  by  the  proper  officer  ; 
that  upon  proof  of  title  matters  collateral  to  that  title  shall 
be  deemed  to  have  been  done;  as  for  instance,  if  a  grant 
or    feoffment   has    been    declared   an   attornment  will  be 

1  Alexander  v.  State,  50  Ga.  478  (ISTG), 

-  Bangor,  etc.,  R.  Co.  v.  Smith,  4"  Me.  45  (1859). 

'  Solomon's  Lodge  r.  Montniolin,  53  G:i.5l7  (1877).  So  the  presnmption  is  that 
a  quorum  of  members  were  present  at  a  business  meeting  of  u,  corporation.  Citizen 
Mut.  Ins.  Co.  V.  Sortw 'll,  8  Allen,  217  (18G4). 

*  Gregory  v.  Brooks,  37  Conn.  305  (1870). 


Q2  PKESUMPTIVE  EVIDENCE.        [rULE  14. 

intended,  and  that  deeds  and  grants  have  been  accepted, 
whicli  are  manifestly  for  the  benefit  of  the  party.  The 
books  on  evidence  abound  with  instances  of  this  kind,  and 
many  will  be  found  collected  in  Mr.  Starkie's  late  valuable 
treatise  on  evidence.  The  same  presumptions  are,  we  think, 
applicable  to  corporations.  Persons  acting  publicly  as  offi- 
cers of  the  corporation  are  to  be  presumed  rightfully  in 
office;  acts  done  by  the  corporation  which  presuppose  the 
existence  of  other  acts  to  make  them  legally  operative,  are 
presumptive  proofs  of  the  latter.  Grants  and  proceedings 
beneficial  to  the  corporation  are  presumed  to  be  accepted, 
and  slight  acts  on  their  part  which  can  be  reasonably 
accounted  for  only  upon  the  supposition  of  such  acceptance 
are  admitted  as  presumptions  of  the  fact.  ,  If  officers  of 
the  corporation  openly  exercise  a  power  which  presupposes 
a  delegated  authority  for  that  purpose,  and  other  corporate 
acts  show  that  the  corporation  must  have  contemplated  the 
legal  existence  of  such  authority,  the  acts  of  such  officers 
will  be  deemed  rightful  and  the  delegated  authority  will  be 
presumed.  If  a  person  acts  notoriously  as  the  cashier  of  a 
bank  and  is  recognized  by  the  directors  or  by  the  corpora- 
tion as  an  existing  officer,  a  regular  appointment  will  be 
jiresumed;  and  his  acts  as  cashier  will  bind  the  corporation 
although  no  written  proof  is  or  can  be  adduced  of  his 
appointment.  In  short,  we  think  that  the  acts  of  artificial 
persons  afford  the  same  presumptions  as  the  acts  of  natural 
persons.  Each  affords  presumptions  from  acts  done  of 
what  must  have  preceded  them  as  matters  of  right  or  mat- 
ters of  duty." 

In  case  II.  it  was  said :  "  It  is  said  that  the  case  does  not 
show  that  F.  was  president  of  the  company  because  it  was 
not  proved  by  the  record  of  his  appointment.  There  are 
some  cases  in  which  a  corporation  is  a  party  involving  the 
authority  of  the  officers  in  which  their  authority  must  be 
proved  by  the  record.  But  the  cases  are  numerous  in  which 
their  authority  has  been  proved  by  parol  evidence.  In  this 
case  the  action  is  between  other  parties,  neither  of  whom 


RULE    11.]         REQULAKITV   OF   OFFICIAL   ACTS.  C3 

has  the  custody  of  tlie  records,  and  before  a  court  in 
another  State,  so  that  there  is  n^  compulsory  proce-;3  by 
which  they  can  be  produced.  It  is  proved  that  F.  was  the 
acting  president  prior  and  subsequent  to  the  time  when  the 
note  was  transferred.  He  signed  tlie  policy  of  iusuranc3 
as  president  for  which  the  note  was  given,  only  one  month 
before  it  was  transferred  :  and  no  annual  mcetinir  could  have 
intervened  for  the  choice  of  any  one  in  his  place.  We  think 
the  evidence  is  sufficient  that  he  was  authorized  to  act  as 
president  at  the  time.  But  it  is  said  that  if  he  was  presi- 
dent of  the  company,  and  so  according  to  the  customary 
mode  of  transacting  such  business,  authorized  to  transfer 
the  note,  the  presumption  that  he  was  so  authorized  is  dis- 
proved by  the  by-laws  which  are  a  part  of  the  case.  And 
it  is  true  that  no  specific  authority  to  indorse  notes  is  given 
by  the  code  or  by-laws  to  the  president  or  to  any  other 
officer  of  the  company.  But  it  does  not  follow  that  such 
authority  is  not  necessarily  implied  in  powers  which  are 
granted.  And  it  should  be  remembered  that  this  is  not  an 
action  against  the  company  as  indorsers  upon  the  contract 
of  indorsement.  It  is  a  suit  between  other  parties  involv- 
ing only  the  authority  of  the  president  to  sell  the  note  in 
payment  of  a  demand  against  the  company,  and  in  addition 
to  the  presumption  arising  from  the  usual  course  of  such 
transactions,  the  president  is  made  by  the  bj'-laws  ex  officio 
treasurer ;  and  so  he  had  the  legal  custody  of  the  assets." 

"The  question  in  this  case,"  it  was  said  in  case  VU., 
'*  is  not  simply  whether  the  defendant  acted  improperly, 
or  without  strict  legal  right,  or  even  maliciously,  but 
whether  he  was  actuated  in  making  and  enforcinir  the 
orders  complained  of  by  a  design  and  intention  to  break 
up  the  contract  relation  existing  between  the  plaintiff  and 
the  captain  of  the  brig  Brilliant,  and  thereby  injure  the 
plaintiff  by  preventing  him  from  acquiring  his  expected 
wharfage.  The  case  turns  on  the  proof  of  that  design, 
and  the  evidence  in  the  ease  does  not  furnish  any  such 
proof  on  which  a  jury  could  properly  find  a  verdict,  nor 


G4  TRESOIPTIVE   EVIDEXCE.  [rULE    14. 

in  our  opinion  would  the  evidence  have  been  sufficient, 
if  the  plaintiff  had  shown  that  the  relations  between  hira 
and  the  defendant  were  unfriendly.  Every  positive,  ener- 
getic and  independent  man  is  liable  to  have  enemies,  and  to 
have  an  unfriendly  state  of  feeling  existing  between  him 
and  other  individuals.  When  such  a  man  accepts  an  office 
whose  duties,  properly  exercised,  will  necessarily  bring  him 
in  conflict  with  the  interests  and  prejudices  of  others,  and 
those  with  whom  his  relations  are  not  friendly,  his  motives 
will  naturally  be  suspected  and  impugned  ;  but  he  will  be 
protected  by  the  presumptions  of  the  law  in  the  perform- 
ance of  the  duties  required  of  him,  unless  it  is  clearly  shown 
that  his  motives  are  private  and  malicious,  and  that  he  has 
wantonly  and  unnecessarily  used  the  power  incident  to  his 
official  state  to  gratify  a  personal  spirit  of  revenge.  We 
discover  nothing  in  this  case  which  rebuts  the  presumption 
that  the  defendant  was  acting  under  a  sense  of  official 
responsibility  and  with  a  view  to  an  honest  discharge  of 
public  duty.  The  brig  Brilliant  had  lain  at  the  wharf  of  the 
plaintiff  from  the  21st  to  the  2(3th  of  September,  covering 
part  of  the  wharf  of  Miller  &  Co.  Miller  &  Co.  had  a  grain 
elevator  upon  their  wharf,  and  there  was  a  canal  boat  lying 
in  the  stream  loaded  with  grain  consigned  to  them  which 
could  not  come  to  their  wharf  and  elevator,  because  it  was 
in  part  occupied,  as  well  as  the  wharf  of  the  plaintiff,  by 
the  brig.  The  defendant  was  superintendent  of  wharves, 
or  supposed  himself  to  be,  and  had  in  his  possession  the 
certificate  of  the  mayor  that  he  was,  and  it  is  to  be  pre- 
sumed was  acting  rightfully  in  ordering  the  brig  to  be 
hauled  astern.  It  is  immaterial  whether  he  was  harbor 
master  or  not,  for  the  duty  of  a  harbor  master  is  to  regulate 
the  location  of  vessels  in  the  stream.  It  is  sufficient  that  he 
was  the  superintendent  of  wharves,  dejure  or  de  facto,  or 
honestly  supposed  himself  to  be  such,  and  believed  it  to  be 
his  duty  to  order  the  brig  astern  and  permit  the  barge  to 
haul  in,  so  that  both  might  be  accommodated,  and  acted 
accordingly  and  did  not  act  with  the  design  imputed  to  him. 


RULE    14.]         PwEGULARITY    OF   OFFICIAL  ACTS.  G5 

The  object  and  purpose  of  his  order  appeared  upon  its  face. 
It  Avas  a  reasonable  and  proper  order  under  the  circum- 
stances, and  one  which  it  appertained  to  hi.s  office  to  give. 
The  brig  had  ah'cady  covered  the  wharf  of  Miller  &  Co. 
and  excluded  the  barge  for  five  days,  and  but  half  her  cargo 
was  discharged,  and  five  days  more  would  have  been 
required  to  complete  the  discharge.  That  would  have  been 
an  unreasonable  time  to  have  kept  the  barge  lying  in  the 
stream  waiting  the  convenience  of  the  plaintiff  and  prob- 
ably subjecting  Miller  &  Co.  to  heavy  demurrage.  Under 
such  circumstances  it  was  the  right  of  Miller  &  Co.  to  have 
the  brig  hauled  astern  far  enough  to  permit  the  barge  to 
come  to  their  wharf,  and  the  clear  and  imperative  duty  of 
the  defendant  to  give  the  order  that  he  gave,  and  enforce  it 
energetically  and  determinedly.  If  for  any  good  reason  the 
brig  could  not  be  hauled  astern  safol}^  and  the  plaintiff  had 
another  wharf  where  the  brig  could  be  unloaded,  as  it 
appears  he  had,  the  defendant  would  have  been  justified  in 
ordering  the  captain  of  the  brig  to  remove  his  vessel  to  the 
other  wharf,  where  he  did  move  it,  to  complete  her  dis- 
charge, for  the  barge  could  be  unloaded  at  no  other  place 
than  at  the  wharf  and  elevator  of  Miller  &  Co.  Such  an 
order  would  have  been  nothing  more  than  enforcing  good 
neighborhood,  and  a  just  regard  for  their  mutual  rights  and 
accommodation,  between  these  adjoining  wharf  owners. 
The  presumption  alluded  to,  and  the  inference  arising  from 
this  state  of  facts,  that  the  defendant  was  governed  in  his 
conduct  by  a  sense  of  official  duty,  and  not  by  a  design  to 
injure  the  plaintiff  through  his  contract  relation  as  a 
wharfinger  with  the  captain  of  the  Brilliant,  is  exceedingly 
strong;  and  the  fact,  however  clearly  proved,  that  the  per- 
sonal relations  of  the  plaintiff  and  defendant  were  unfriendly 
would  be  entitled  to  little,  if  any,  weight  to  rebut  the  pre- 
sumption or  negative  the  inference,  and  if  that  was  all  the 
plaintiff  sought  to  prove  we  should  affirm  the  judgment 
without  hesitation.  But  it  appears  from  the  motion  for  a 
new  trial  that  the  plaintiff  proposed  to  go  beyond  the  mere 
5 


QQ  PRESUMPTIVE    EVIDENCE.  [rULE    14. 

state  of  unfriendliness  in  his  proof,  and  how  far  and  with 
what  effect  he  would  have  done  so  if  permitted  we  are 
unable  to  see.  We  think  he  should  have  been  permitted  to 
prove  any  acts  of  hostility  and  the  circumstances  under 
which  they  occurred,  from  which  an  inference  could  be 
drawn  consistently  with  the  rules  of  law  in  other  respects, 
that  the  plaintiflfwas  governed  in  his  conduct  by  the  design 
imputed  to  him  and  which  constitutes  the  gist  of  the  action. 
Because  such  evidence  was  excluded  we  feel  constrained  to 
grant  a  new  trial.  But  we  deem  it  our  duty  to  say  that, 
unless  the  plaintiff  can  produce  evidence,  other  than  mere 
unfriendliness,  to  rebut  the  presumption  that  the  defendant 
was  acting  from  right  motives,  and  the  supporting  inference 
arising  from  the  fact  that  a  case  existed  calling  imperatively 
for  his  official  interference  in  some  way  for  the  protection 
of  Miller  &  Co.,  the  non-suit  should  be  promptly  renewed." 


CHAPTEE  lY. 

THE  REGULARITY  OF  BUSINESS  AND  UNOFFICIAL 

ACTS. 

RUTiE  15.  —  In  commercial  transactions  the  presnmption 
is  that  tlie  usual  course  of  business  was  followed  by 
the  parties  thereto. 

"  Where,"  it  was  once  said  by  an  English  judge,  "  the 
maxim  of  omnia  rite  acta  prcesumuntur  applies,  there  indeed 
if  the  event  ought  probably  to  have  taken  place  on  Tuesday, 
evidence  that  it  did  take  place  on  Tuesday  or  Wednesday 
is  strong  evidence  that  it  took  place  on  Tuesday."  '■ 

Illustrations. 

I.  In  an  action  against  the  acceptor  of  several  bills  of  exchange  •which 
were  made  in  November,  1850,  and  became  due  on  rebruary  oth,  and 
March  12lh,  1851,  the  defense  is  that  they  were  accepted  by  the  defendant 
while  an  infant.  It  is  proved  that  the  defendant  came  of  age  March  11th, 
1851.  The  presumption  is  that  all  the  bills  were  accepted  before  he 
attained  his  majority. ^ 

II.  It  is  alleged  in  a  bill  for  relief  that  a  certain  agreement  was  in 
writing.    The  presumption  is  that  it  was  signed.* 

III.  A.  and  B.  are  proved  to  be  carrying  on  business  in  partnership. 
The  presumption  is  that  they  are  interested  in  equal  shares.* 

IV.  It  is  the  usage  at  a  Boston  hotel  to  deposit  all  letters  left  at  the 
bar  in  an  urn  kept  for  that  purpose  whence  they  are  distributed  every 
fifteen  minutes  to  the  rooms  of  the  different  guests  to  whom  they  are 
addressed.  B.  is  a  guest  at  the  hotel  on  a  day  on  which  A.  leaves  at  the 
bar  a  letter  addressed  to  B.  The  presumption  is  that  the  letter  was 
received  by  B.* 

1  Avery  r.  Bowden,  6  E.  &  B.  973  (ISBO) ;  Brownell  r.  Palmer,  22  Conn.  121  (1S52). 

a  Roberts  v.  Bethell,  12  U.  B.  77'J  (18J2). 

»  Rist  V.  Hobson,  1  Sim.  &  Stu.  543  (1824). 

*  Farrar  v.  Bcswick,  1  Moo.  &  R.  527  (lS.;rO  ;  Brewer  i-.  Browne,  63  Ala.  210  (1?'*0). 
"  Where  there  are  two  or  more  persona  acting  as  partners,  the  prc.'*uniplion  is  tli:it 
they  are  equal  in  interest  in  the  business  engaged  in,  aiul  the  property  owned  by 
them  in  tlie  firm  i>anie."    Mnorc  v.  Bare,  11  Iowa,  198  (1860). 

'  Dana  v.  Kemble,  19  Pick.  112  (1837). 

(  ^^    ) 


68  PEESUMPTIVE   EVIDENCE.  [RULE    15. 

V.  Parties  conduct  a  business  together.  The  presumption  is  Ihattbey 
are  partners.^ 

YI.  A.  sues  B.  for  the  price  of  certain  goods  made  and  delivered  by 
A.  to  B.  The  defense  is  that  they  are  not  of  the  quality  ordered.  The 
fact  that  B.  accepted  them  and  kept  them  for  some  time  without  com- 
plaint, raises  a  presumption  that  he  had  waived  all  objections. ^ 

YII.  The  question  is  whether  L.  was  a  partner  in  a  certain  firm. 
Letters  are  produced  written  by  L.  in  the  name  of  the  Arm,  and  entries 
made  by  him  in  the  firm  books.    This  raises  a  presumption  that  he  was.' 

VIII.  A  note  is  executed  by  B.,  a  member  of  the  firm  of  B.  &  Co. 
This  is  presumed  to  be  a  firm  note  and  will  bind  the  lirra.* 

IX.  Notes  and  accounts  past  due  are  received  by  an  attorney.  The 
presumption  is  that  he  receives  them  for  collection.^ 

X.  Certain  books  of  account  of  a  partnership  are  produced  in  evi- 
dence.    They  are  presumed  to  be  correct.* 

XI.  A.  sells  goods  to  B.  The  presumption  is  that  the  goods  are  to  be 
paid  for  on  delivery.' 

XII.  A.  lends  a  sum  of  money  to  B.  The  law  presumes  a  promise  on 
the  part  of  B.  to  repay  A.* 

XIII.  A.  accepts  a  draft  on  him  drawn  by  B.  The  presumption  is  that 
A.  at  that  time  had  funds  of  B.'s  in  his  hands  with  wiiich  to  pay  it.* 

XIV.  A.  is  employed  by  B.  at  a  monthly  salary.  The  presumption  is 
that  A,  was  engaged  by  the  month  and  not  for  any  definite  period. i'' 

XV.  Freight  is  earned  by  a  vessel.  It  is  presumed  to  belong  to  the 
owners  of  the  vessel." 

XVI.  An  entry  is  made  by  a  clerk  in  his  books  of  goods  sold  to  A.  The 
clerk  is  dead.     The  presumption  is  that  the  goods  were  delivered.^* 


1  McMullan  v.  Mackenzie,  2  G.  Greene,  3G8  (1849) ;  and  see  Ferris  v.  Kilmer,  47 
Barb. -til  (1806). 

s  Davis  V.  Fish,  1  G.  Greene  (la.),  40G ;  48  Am.  Dec.  387  (1848) ;  and  see  Minor  v. 
Edwards,  12  Mo.  137;  49  Am.  Dec.  121  (lfU8).  The  waiver  of  the  Stale's  power  to  tax 
is  never  presumed.  Battle  v.  Mobile,  9  Ala.  234;  44  Am.  Dec.  438  (1846) ;  Mayor  of 
Baltimore  v.  Baltimore,  etc.,  R.  Co.,  6  Gill,  268;  48  Am,  Dec.  530  (1848). 

3  Lewis  V.  Tost,  1  Ala.  (55  (1840). 

*  Jones  V.  Rives,  3  Ala.  13  (1841). 

6  MardistJ.  Shackleford,  4  Ala.  493  (1842). 

«  Routen  v.  Bostwick,  59  Ala.  3G0  (1877) ;  Desha  v.  Smith,  20  Ala.  747. 

'  Roberts  v.  Wilcoxson,  36  Ark.  364  (1S80). 

«  Swift  r.  Swift,  46  Cal.  207  (1873). 

»  Trego  V.  Lowrey,  8  >'eb.  238  (1879) ;  Kendall  v.  Galvin,  15  Me.  131;  32  Am.  Dec. 
Ill  (is:i8). 

ii  Jones  V.  Vestry  of  Trinity  Church,  19  Fed.  Rep.  69  (1883). 

31  Williams  V.  Insurance  Co.,  1  llilt.  .345  (1857), 

12  Clarke  v.  Magruder,  2  II.  &  J.  77  (1807). 


RULE    15.]         BUSINESS   AND   UNOFFICIAL   ACTS. 


69 


XVII.  A.  selLs  goods  to  B.  on  credit.  The  presumption  i.s  that  A. 
believed  B.  to  be  solvent  at  the  time  of  tlie  sale.* 

XVIII.  A.  and  B.  are  in  business  together.  The  presumption  is  that 
the  partnership  is  solvent.' 

XIX.  The  question  is  whether  A.  is  insolvent.  It  is  proved  that  there 
are  unsatisfied  judgments  against  A.  This  raises  the  presumption  that 
he  is.* 

XX.  The  question  is  -whether  B.  is  insolvent.  A  creditor  cannot 
collect  his  debt  from  B.     This  raises  a  presumption  of  his  insolvency.' 

XXI.  An  envelope  produced  bears  the  post-mark  and  date  of  a  certain 
office.  This  raises  the  presumption  that  the  letter  was  mailed  and  sent 
at  this  time.* 

XXII.  Two  persons  sign  a  note.  The  presumption  is  that  they  are 
equally  bound, ^ 

XXIII.  A  letter  is  proved  to  have  been  written  by  A.  The  presump- 
tion is  that  it  was  signed  by  A.' 

XXIV.  An  envelope  containing  a  letter  bears  a  post-marlv.  The  pre- 
sumption is  that  it  has  been  through  the  mail.* 

XXV.  In  an  action  for  the  conversion  of  a  dwelling  house  removed 
from  one  lot  to  another,  it  does  not  positively  appear  whether  the  building 
was  attached  to  the  soil  on  either  lots.     The  presumption  is  that  it  was.'' 

XXVI.  An  owner  of  land  conveys  a  strip  to  a  railroad  company  for 
its  track  of  the  value  of  8C0  for  which  he  receives  $1,G00.  The  presump- 
tion is  that  damages  from  risk  of  fire  from  the  company's  engines  are 
included  in  the  price. ^^ 

XXVII.  A  deed  is  proved  to  have  been  made  and  delivered  to  A.'s 
ancestor.    The  presumption  is  that  it  is  in  A.'s  possession  and  control.ii 

XXVIII.  Two  person.s  in  possession  of  distinct  portions  of  premises 
make  a  joint  mortgage  of  them.  The  presumption  is  that  they  are  equal 
owners  of  the  premises  and  equally  liable  for  the  mortgage  debt.^^ 

1  O'nrien  r.  Norris,  16  Md.  1'22  (ISfiO).  "The  presumption  both  of  law  aiul  of 
rea«on,  in  the  absence  of  proof  to  the  contrary  is  that  when  they  sold  the  goods  ou 
a  credit  they  believed  the  i)urchaser  to  be  solvent  and  able  to  pay  for  them." 

2  Wallace  r.  IUill,2SGa.  63  (ISoO). 

3  Anslcy  f.  Carlos,  9  Ala.  979  (1S46) ;  Lawson  r.  Orear,  7  Ma..  7S1  (1S41) ;  Reynolds 
V.  rharr,  9  Ala.  .5^0  (1SI6) ;  Uccson  r.  Wiley,  '28  Ala.  575  (165C). 

<  Bilberry  f.  Moblcy,20  Al.i.  2;;0  (ls.-)2). 
f>  New  Haven  County  P.k.  r.  Mitchell,  15  Conn.  206  (18i2). 
•  Orvis  V  Newell,  17  Conn.  97  (1845). 
»  Lucas  V.  Brooks,  23  La.  Ann.  117  (1S711. 
8  r.  S.  f.  Noelkc,  17  Blatclif.  554  (18S0). 
»  Northrup  r.  Trask.  39  Wis.  515  (1S7G). 
10  Rood  V.  New  York,  etc.,  R.  Co.,  18  Barb.  gO  (1854). 
H  Xcwsom  V.  Davis,  20  Tex.  425  (IS."). 
1=  Stroud  r.  Casey,  27  Fa.  St.  471  (1850). 


70  PEESUMPTIVE   EVIDEXCE.  [rULE    15. 

XXIX.  Certain  bank  notes  are  proved  to  pass  currently  in  the  com- 
muuity.    The  presumption  is  that  thej'  are  genuine. ^ 

XXX.  It  is  the  general  custom  at  a  mill  to  give  a  receipt  to  the  own- 
ers of  rice  delivered  there.  A.  delivers  rice  there.  The  presumption  is 
that  he  was  given  a  receipt.' 

XXXI.  A  merchant  renders  an  account  to  a  customer.  The  customer 
keeps  it  without  objection.    The  presumption  is  that  it  is  correct.'* 

XXXII.  A.  demands  payment  of  a  sum  of  money  of  B.  B.  gives  him 
it,  stating  that  he  does  so  on  certain  conditions.  A.  remains  silent. 
The  presumption  is  that  A.  acquiesces  in  the  conditions.* 

XXXIII.  A.  holds  a  note  payable  to  bearer.  A.  is  presumed  to  be  the 
owner.^ 

In  case  I.  Jervis,  C.  J.,  said:  "  There  is  nothing  on  the 
face  of  the  bill  to  show  when  it  was  accepted.  Why  then  is 
it  that  this  evidence  is  sufficient?  It  is  because  it  must  be 
presumed  that  the  bill  has  been  accepted  during  its  currency, 
and  consequently  before  the  commencement  of  the  action; 
because  it  is  the  usual  course  of  business  to  present  bills  for 
acceptance  before  the  time  for  the  payment  of  them  has 
run  out,  and  within  a  usual  time  after  the  drawinj;  of 
them.     *     *     *     J  decide  this  case  upon  this  broad  ground, 

1  Hummell  v.  State,  17  Oliio  St.  628  (1867).  There  is  no  presumption  that  a  bond 
executed  in  Virginia  during  tlie  war,  but  payable  two  years  after  date  is  payable  in 
Confederate  currency.  Dyerle  v.  Stair,  28  Gratt.  800  (1877).  Nor  that  a  receipt  for  a 
certain  number  of  dollars  given  by  a  master  in  chancery  in  North  Carolina  during 
the  civil  war,  was  meant  to  acknowledge  the  payment  of  that  sum  in  gold  or  silver. 
If  there  is  any  presumption  it  is  the  reverse  of  this.  Melvin  v.  Stevens,  84  N.  C.  78 
(1881). 

-  Ashe  V.  De  Tlosset,  8  Jones  (L.)  240  (18C0). 

3  Webb  V.  Chambers,  3  Ired.  (L.)  374  (1843). 

*  Ilallr.  Holden,  116  Mass.  172  (1874). 

5  Stoddardr.  Burton, 411owa,582  (1875).  An  indorsement  made  at  the  time  of  the 
inception  of  a  note  is  presumed  to  have  been  for  the  same  consideration  expressed 
by  the  note.  If  made  subsequently  to  the  date  of  the  note,  and  without  a  prior 
indorsement  by  the  payee,  it  is  presumed  to  have  been  for  a  different  consideration, 
and  the  party  will  be  regarded  as  a  guarantor;  but  if  made  after  a  prior  indorse- 
ment by  the  payee,  the  law  presumes  it  to  have  been  done  in  aid  of  the  negotiation 
of  the  note,  and  the  party  will  be  treated  as  a  subsequent  indorser.  If  made  with- 
out date  it  will  be  presumed  to  have  been  made  at  the  inception  of  the  note.  Cal- 
burnr.  Averill,30  Me.  310;  50  Am.  Dec.  030  (1849).  When  a  note  is  indorsed  in  blank, 
the  presumi)tion  is  that  holder  purchased  it  immediately  from  payee.  Peaslee  v. 
Eobbins,  3  Mete.  104  (1811).  The  drawee  of  a  check  is  presumed  to  know  the  signa- 
ture of  the  drawer.  Redington  v.  Woods,  4b  Cal.  406  (1873).  "  If  the  defendant  signed 
the  check  and  it  came  into  the  hands  of  a  bona  fide  holder,  the  pi-esumption  of 
law  was  that  it  was  issued  by  the  drawer,  unless  the  contrary  was  shown  by  him." 
Hoyt  V.  Seeley,  18  Conn.  359  (1847). 


RULE    15.]        BUSINESS   AND   UNOFFICIAL   ACTS.  71 

that  wc  are  to  presume,  unless  the  contrary  is  shown,  lliat 
a  bill  of  exchange  has  been  accepted,  not  on  the  day  of  its 
date,  but  within  a  reasonable  time  afterward.  It  is  not  to 
be  presumed  that  the  acceptance  took  place  after  the  matur- 
ity of  the  bill.  That  view  disposes  of  the  case  as  to  all  these 
bills  —  as  to  five  of  them  because  they  became  due  before 
the  defendant  attained  the  age  of  twcnt3'-()ne,  and  as  to  the 
sixth,  because  a  reasonable  time  for  its  acceptance  had 
elapsed  before  the  defendant's  majority."  And  Maule,  J., 
added  :  "Although  it  is  not  usual  to  accept  a  bill  on  the  day 
on  which  it  is  drawn,  it  is  usual  to  do  so  at  some  early 
opportunity  after  that  day.  Therefore,  where  the  drawer 
and  acceptor  are  both  living  in  the  same  town,  the  presump- 
tion is  that  the  bill  is  accepted  shortly  —  within  a  few 
days  —  after  it  is  drawn ;  it  being  manifestly  the  interest 
of  the  drawer  to  have  a  negotiable  instrument  made  perfect 
as  early  as  conveniently  may  be.  The  date  of  the  bill, 
therefore,  though  not  evidence  of  the  very  date  of  the 
acceptance,  is  reasonable  evidence  of  the  acceptance  having 
taken  place  within  a  short  time  after  that  day,  regard  being 
had  to  the  distance  the  bill  will  have  to  travel  from  the  one 
party  to  the  other.  Upon  the  same  principle  upon  w^hich 
that  presumption  rests,  it  may  be  presumed  in  this  case 
that  the  bills  were  accepted  before  they  arrived  at  matur- 
ity." 

"Where  a  partnership,"  said  Parke,  B.,  in  case  III., 
"  is  found  to  exist  between  two  persons,  but  no  evidence  is 
given  to  show  in  what  proportions  the  parties  are  interested, 
it  is  to  be  presumed  that  they  are  interested  in  equal  moie- 
ties." 

In  case  IV.  it  was  said  :  "  The  evidence  that  a  letter  left 
at  the  Tremont  House  and  addressed  to  B.  actually  reached 
him  is  of  the  same  nature  as  a  similar  presumption  arising 
from  putting  a  letter  so  addressed  into  the  post-office,  and 
may  even  be  considered  as  considerably  stronger,  inasmuch 
as  there  would  be  less  probability  of  a  failure." 

So  there  is  a  presumption  against  the  validity  of  a  claim 


72  PKESUMPTIYE  EYIDEXCE.        [RULE  15. 

which  has  long  hiin  dormant.^  So  non-user  of  a  patent 
*♦  amounts  to  a  very  strong  presumption  as  to  the  invention 
not  being  useful."  ^     So  notice  is  presumed.' 

Sub-Rule  1.  —  Persons  engaged  in  a  particular  trade  are 
presumed  to  be  acquainted  with  the  value  of  articles  bought 
and  sold  therein  (A),  the  names  under  which  they  go  in 
such  trade  (B),  and  the  general  customs  obtaining  and 
followed  there  ( C  ) . 

Jllvstrations. 
A 

I.  A  person  takes  some  bank  bills  to  a  banker  to  be  exchanged  for  gold, 
and  the  banker,  after  examining  them,  buys  them  from  himata  discount. 
Afterwards  discovering  that  one  of  the  bills  is  worthless,  he  brings  an 
action  for  the  money  he  paid  for  it.  He  can  not  recover,  there  being  no 
e%'idence  of  fraud  or  knowledge  on  the  customer's  part.  The  banker  is 
presumed  to  be  acquainted  with  the  value  of  the  bills  purchased  by  him.* 

B. 

I.  D.  imports  into  New  York  a  quantity  of  spelter,  which  under  the 
name  of  tutenague  is  exempt  from  duty.  The  collector,  however, 
claims  and  receives  a  duty  of  20  per  cent  thereon,  and  subsequently  D. 
sells  the  spelter  to  M.  at  long  price,  which  by  custom  gives  a  purchaser 
the  right  to  any  drawback  on  duty  which  maybe  made.  Afterward  the 
collector  decides  that  spelter  is  not  dutiable,  and  pays  back  to  D.  the  20 
per  cent.  In  an  action  by  M.  claiming  this  duty  M.  can  not  recover, 
as  the  presumption  is  that  both  M.  and  D.  knew  at  the  time  of  the  sale 
that  the  article  was  not  dutiable .^ 

"  It  is  a  reasonable  presumption,"  it  was  said  in  case  I., 
*'that  those  who  are  dealing  in  articles  of  commerce, 
especially  those  who  purchase  by  wholesale  from  the 
importers,  are  acquainted  with  the  different  names  by  which 
such  articles  are  known  to  the  commercial  world.     And  if 


1  D.  T.  V.  D.  L.  R.,  1  p.  &  D.  127  (1867) ;  Sibbcring  v.  Earl  of  Balcarras,  3  DeG.  & 
Sm.  735  (18.50). 

2  In  re  Bakewell's  Patent,  15  Moore  P.  C.385  (18G2). 

3  Mayor  of  Atlanta  v.  Perdue,  50  Ga.  607  (1875) ;  Chapman  v.  Mayor  of  Macon,  55 
Ga.  566(1875). 

*  Hinckley  v.  Kersting,21  111.  247  (1859). 
6  Moore  v.  De.s  Arts,  2  Barb.  Ch.  636  (1848) 


nULE    15.]         BUSINESS   AND   UNOFFICIAL   ACTS.  73 

spelter  was  actually  exempted  from  duty  by  the  names  used 
iu  the  section  of  the  statute  relative  to  exempt  articles, 
pro])ably  both  parties  to  this  sale  had  reason  for  believing 
that  the  claim  made  by  the  collector  was  unfounded  and 
that  it  would  probably  be  reversed,  and  the  duties  be 
refunded  to  the  importer.  If  so,  the  purchaser  should  have 
made  his  contract  with  reference  to  that  event,  so  as  to 
secure  for  himself  the  benefit  of  the  refunded  duty  iu  case 
it  should  turn  out  that  the  collector  was  wrong." 

C. 

I.  A.  employ's  B.,  a  broker,  to  trade  for  liim  on  the  Stock  Exchange. 
The  general  rules  of  the  Exchange  are  presumed  to  be  known  to  A.,  and 
B.  has  an  implied  authority  to  contract  iu  accordance  therewilh.i 

II.  It  is  the  general  custom  in  a  certain  trade  to  charge  interest  on 
accounts  after  a  fixed  time.  Parties  dealing  therein  are  presumed  to  be 
cognizant  of  this  custom,  and  are  bound  bj'  it.* 

III.  It  is  the  general  custom  of  a  bank  to  demand  payment  of  notes 
and  give  notice  on  the  fourth  instead  of  the  third  day  after  they  are  due. 
Persons  negotiating  notes  at  this  bank,  or  making  commercial  paper  for 
the  purpose  of  having  it  negotiated  there,  are  presumed  to  know  this 
custom.^ 

IV.  A  dry  goods  salesman  sues  B.,  his  employer,  for  wrongful  dismis- 
sal. There  is  a  general  custom  in  the  dry  goods  trade,  that  -when  a  clerk 
or  salesman  begins  a  season  without  a  special  contract,  he  can  not  be  dis- 
missi-d  until  the  end  of  it.  Both  A.  and  B.  are  presumed  to  know  this 
custom.* 

All  trades  have  their  usages,  and  when  a  contract  is  made 
with  a  man  a])()ut  the  business  of  his  craft,  it  is  framed  on 
the  basis  of  such  usage,  which  becomes  a  part  of  it,  unless 
there  is  an  express  stipulation  to  the  contrary.^ 

1  Sutton  V.  T.ith.am,  10  Ad.  >%  Ell.  27;  Bayliffc  v.  Butterworth,  1  Ex.  25. 

-  McAlistcr  V.  Kc;ib,  4  Wi  nd.  i^S,  S  Jd.  lO'.i;  Meech  v.  Smitli,  7  Id-  Mo. 

8  Mills  r.  B.ink  of  U.  S.,  11  Whoat.  VA  ;  Kenner  v.  Dank  of  Columbia,  0  Td.  5ii2; 
Bank  of  Washinprlnn  v.  Triplctt,  1  I'ct.  2.i ;  Ycaton  r.  Rank  of  Alexaniiria.  5  Craiich, 
9;  Sniilli  r.  Wliiliug,  12  Mass.  C;  Dorchester,  etc.,  Bank  f.  New  Euglaud  Bank,  1 
Cush.  177. 

*  Given  »'.  Charron,  15  Md.  502,  and  see  Lyon  r.  George,  44  Md.  205. 

5  Pittsburg  t'.  O'Neil,  1  Penn.  St.  34:5;  Uindskoff  v.  Barrett,  14  Iowa,  101;  Bcatty 
t".  Gregory,  17  Jrf.  109;  Toledo,  etc.,  Insurance  Uo.  r.  Siieares,  16  Ind.  52;  Grant  r. 
Lcxin;:!;ton  Fire  Insurance  Co., 5  /rf.23;  Barrett  r.  Williamson,  4  McLean,. ^SD:  (Jreavcs 
V.  Legg,  11  Ex.  G42;  2  H.  &N.  210.    Iu  a  New  York  case  Folger,  J.,  said:  "There  are 


74:  PRESUMPTIVE   EVIDEXCE.  [eULE    15. 

Ill  ciise  I.  it  was  said:  "A  person  who  deals  in  a  particu- 
lar market  must  be  taken  to  deal  according  to  the  custom 
of  that  market,  and  he  who  directs  another  to  make  a  con- 
tract at  a  particular  place  must  be  taken  as  intending  that  the 
contract  may  be  made  according  to  the  usage  of  that  trade." 

In  case  II.  it  was  said:  '*  The  uniform  custom  of  a  mer- 
chant or  manufacturer  is  presumed  to  be  known  to  those  in 
the  habit  of  dealing  with  him,  and  in  their  dealings  they 
are  supposed  to  act  in  reference  to  that  custom." 

In  case  III.  it  was  said:  "  The  parties  are  bound  by  such 
usage  whether  they  have  a  personal  knowledge  of  it  or  not. 
In  the  case  of  such  a  note  the  parties  are  presumed  by 
implication  to  agree  to  be  bound  by  the  usage  of  the  bank 
at  which  they  have  chosen  to  make  the  security  itself  nego- 
tiable." It  must  be  borne  in  mind,  however,  that  this 
knowledge  is  presumed  only  where  the  custom  is  a  general 
and  notorious  one.  A  local,  special  custom  in  a  particular 
trade  is  not  presumed  to  be  known  even  to  persons  doing 
business  therein.^ 

Sub-Rule  2. — An  agreement  to  pay  for  services  rendered 
and  accepted  i.s  presumed(^A)  unless  the  parties  are  mem- 
bers of  the  same  family  or  near  relatives(l^) . 

Illustrations. 
A. 

I.  It  is  proved  that  medical  services  were  rendered  by  A.,  a  physician 
to  B.,  deceased.     The  law  presumes  a  promise  by  B.  to  pay  for  tliem.* 


ca?es  of  principal  and  agent  where  one  has  been  sent  by  another  to  flo  acts  in  a 
particular  business  to  be  done  at  a  ])articular  locality — as  on  Stock  Exchange  — 
where  the  power  to  deal  is  a  privilege  obtained  by  the  payment  of  a  fee,  and  is 
restricted  to  a  body  which  has  for  its  regulation  and  government  come  under  certain 
prescrilied  rules  or  established  usages;  and  as  the  agent  could  not  do  the  will  of  his 
principal  nor  could  the  princijial  himself,  save  in  conformity  with  those  rules  or 
usages,  it  is  held  that  the  principal  must  be  bound  thereby,  whether  cognizant  of 
them  or  not,  and  that  ignorance  will  not  excu.se  him."  Walls  v.  Bailey,  49  N.  V.  464. 
•  1  Miller  v.  Burke,  68  N.  Y.  625;  Flynn  v.  Murphy,  2  E.  1).  Smith,  378;  Farmers, 
etc.,  Bank  v.  Sprague,  63  N.  Y.  605;  Pierpont  v.  Fowle,  2  Woodb.  &  M.  23;  Smith  v. 
Gibbs,  44  N.  l\.  335. 

2  In  re  Scott,  1  Redf.  (N.  Y.)  234  (1847) ;  and  see  Burr  v.  Williams,  23  Ark.  244 
(1861),  as  to  goods  furnished. 


RULE    15.]         BUSINESS   AND   UNOFFICIAL   ACTS.  75 

In  case  I.  it  was  said:  "As  regards  tlic  debt  of  the  exec- 
utor against  the  estate,  which  is  for  medical  service  and 
attendance,  it  is  satisfactorily  proved  that  he  was  the  family 
physician  of  the  testator;  that  he,  as  such,  attended  him 
for  several  years,  for  which  he  had  not  received  any 
pay.  These  services  being  valuable,  the  law  presumes 
a  promise  to  pay.  It  is  coniix'tent,  however,  for  the 
opposing  party  to  show  that  the  services  were  rendered 
gratuitously." 

B. 

I.  On  the  marriage  of  A.  to  B.  the  former  goes  to  live  with  B.'s  father 
by  invitation,  -without  any  agreement  as  to  payment  of  board  for  himself 
and  wife.    There  is  no  presumption  that  he  agreed  to  pay  board.* 

II.  A  step-father  assumes  the  parental  relation  toward  B.,  an  infant, 
the  child  of  his  wife  by  a  former  husband.  On  the  other  baud  B.  renders 
services  to  the  step-father  to  a  value  in  excess  of  his  board  and  educa- 
tion.   There  is  no  presumption  of  a  promise  to  pay  for  such  services.'^ 

III.  The  brother  of  A.  after  A.'s  death  presents  a  claim  for  services  for 
a  period  of  five  years.  During  tliis  time  he  was  boarded  and  clothed  by 
A.  There  is  no  presumption  of  an  agreement  to  pay  him  for  these  ser- 
vices.^ 

IV.  A.  and  his  wife  board  and  lodge  in  the  house  B.,  the  brother  of  A., 
and  assist  him  in  carrying  on  his  business.  There  is  no  presumption  that 
either  the  services  on  the  one  hand  or  the  board  and  lodging  on  the  other 
were  to  be  paid  for.* 

V.  L.  is  the  mother  of  K.'s  wife  and  lives  with  them  for  ten  years. 
There  is  no  presumption  of  an  agreement  by  her  to  pay  for  board,  etc., 
during  this  time.* 

VI.  B.  being  out  of  emploj-ment  goes  to  live  with  C,  and  while  there 
performs  certain  services  for  C.  B.'s  mother  and  C.'s  wife  are  cousins. 
The  law  implies  an  agreement  to  pay  the  value  of  such  services." 

In  case  II.  it  was  said:  "Under  certain  circumstances 
where  one  man  labors  for  another  a  presumption  of  fact 
will  arise  that  the  person  for  whom  he  labors  is  to  pay  him 

1  Wilcox  V.  Wilcox,  48  Barb.  327  (1SG7). 

=  Williams  v.  Hulcliinson,  3  N.  Y.  312  (1850) ;  Andrns  r.  Foster,  17  Vt.  556  (1?45). 
3  IJowen  V.  Bowen,  2  Dr.idf.  336  (ia53) ;  Uobinson  r.  Cusliinan,2  Deuio,  119;  Fitch 
V.  Peckham,  16  Vt.  150  (1814) ;  Weir  v.  Weir,  3  B.  Mon.  645  (1343). 
*  Davies  v.  Da  vies,  i)  C.  &  P.  87  (1839). 

'  Kincr  r.  Kelly,  23  Ind.  89  (1S67) ;  Cauble  r.  Ryan,  26  Id.  207. 
«  Gallagher  r.  Vaught,  8  Uuu,  87  (1870). 


7(5  PRESUMPTIVE  EVIDENCE.        [rULE  15. 

the  value  of  his  services.  It  is  a  conclusion  to  which  the 
mintl  readily  comes  from  a  knowledge  of  the  circumstances 
of  the  particular  case,  and  the  ordinary  dealings  between 
man  and  mark.  But  where  the  services  are  rendered  between 
members  of  the  same  family  no  such  presumption  will 
arise.  We  find  other  motives  than  the  desire  of  gain  which 
may  prompt  the  exchange  of  mutual  benefits  between  them, 
and  hence  no  right  of  action  will  accrue  to  either  party, 
altliough  the  services  or  benefits  received  may  be  very  val- 
uable." 

In  case  V.  it  was  said  :  "  The  law  takes  notice  very  prop- 
erly of  the  customs  of  hospitality  and  friendly  intercourse 
usual  among  mankind.  This  is  it  seems  to  us  the  basis  of 
the  distinction  between  cases  where  the  parties  are  not 
related  by  such  ties,  and  those  where  they  are  so  related. 
The  counsel  concedes  that  if  the  deceased  had  been  K.'s 
mother,  instead  of  the  mother  of  his  wife,  the  law  of  the 
case  would  have  been  so.  We  perceive  nothing  to  warrant 
a  distinction  between  the  case  put  and  the  one  before  us." 

In  case  VI.  it  was  said  :  ''  Ordinarily  where  services  are 
rendered  by  one  person  for  another  without  any  agreement 
in  respect  to  compensation,  the  law  will  imply  an  agree- 
ment to  pay  what  the  services  are  fairly  worth.  There  is, 
however,  a  well  recognized  exception  to  this  general  rule  in 
respect  to  services  rendered  by  near  relatives  and  mem- 
bers of  the  same  family,  on  the  ground  that  the  law 
regards  such  services  as  acts  of  gratuitous  kindness  and 
affection.  *  *  *  "Yho  defendant's  wife  and  the  plain- 
tiff's mother  are  cousins.  *  *  *  They  were  not, 
therefore,  related  at  all,  except  by  aflinity,  and  we  think 
such  relationship  not  sufficiently  near  to  place  the  parties 
within  the  exception.  We  have  been  unable  to  find  any 
reported  case  that  carries  the  doctrine  to  that  extent.  In 
fact,  although  the  elementary  writers  seem  to  lay  down 
the  exception  as  broadly  as  it  is  stated  above,  yet  all  the 
reported  cases  confine  it  to  cases  of  claims  between  mem- 
bers of  the  same  family,   and  the  courts  refuse  to  imply  a 


EULE    15.]        BUSINESS   AND   UNOFFICIAL   ACTS.  77 

promise  by  reason  of  the  existence  of  the  family  vcla- 
tion.  *  *  *  "VYe  do  not  think  tiiat  the  relation  between 
the  parties  to  this  action  was  such  as  would  prevent  the  law 
from  implying  an  agreement  to  i)ay  for  services  rendered." 

Sub-Rulo  3.  —  Negotiable  paper  is  presumed  to  have  been 
regularhj  negotiated,  and  to  be  or  to  have  been  regularly 
held^  (A),  except  where  it  was  procured  or  put  in  cir- 
culation through  fraud  or  duress  or  is  illegal(^ii). 

Illustrations. 

A. 

I.  A.  Is  the  holder  of  a  promissory  note.     The  presumption  is  that  he 
is  a  bona  fide  holder  for  value  received.' 


1  The  legal  presumiUion  is  that  every  promissory  note  was  given  in  the  course  of 
business  anil  for  value  and  iliat  it  is  to  be  paid  by  the  maker  as  the  primary  debtor. 
Bank  of  Orleans  v.  Barry,  1  Denio,  116  (1S45) ;  Miller  v.  Mclntyre,  9  Ala.  638  (1846) ; 
Dickerson  v.  Burke,  25  Ga.  225  (1858).  "The  presumption  is  that  a  note  is  of  the 
value  of  the  sum  promised  thereby  to  be  paid."  Loomis  v.  Mowry,8  Hun,  311  (1S76) ; 
Woodworlh  v.  iluntoon,  40  ni.  131  (1805) ;  Curtiss  v.  Martin,  20  Id.  557  (1858) ;  Kelley 
r.  Ford,  4  la.  140;  Trustees  r.  Hill,  12  Id.  462;  Wilkinsons.  Sargent, 9  7d.  521 ;  La throp 
V.  Donaldson,  22  id.  235  (1867) ;  Canal  Bank  v.  Templeton,  20  La.  Ann.  141  (1S6S) ; 
Scott  V.  Williamson,  24  Me.  343  (1844) ;  Burnham  v.  Webster,  19  Id.  232  (1841) ;  Ear- 
bee  V.  Wolfe,  9  Port.  300  (1S39) ;  Cook  v.  Helms,  5  Wis.  107  (1856).  But  where  fraud 
or  illegality  or  duress  is  shown  in  its  inception,  the  burden  is  on  the  holder  to  show 
regularity.  Bailey  v.  Biihvell,  13 M.  &  W.  76;  Harvey  v.  Towers,  6  Ga.  COO;  Fitch  v. 
Jones,  5  El.  &  B.  238;  Catlin  v.  Hansen,  1  Duer.  323;  Gwin  v.  Lee,  IMd.  Ch.  445; 
Munro  v.  Cooper,  5  Pick.  412;  Sisternians  r.  Field,  9  Gray,  332  (1857) ;  Tucker  f.  Mor- 
rill, 1  Allen,  528  (1801);  Beltzhover  r.  Blarkstuck,  3  Watts,  26;  Vallet  v.  Parker,6 
Wend.  615;  Bissell  v.  Morgan,  11  Cush.  198  (1853) ;  Perrin  v.  Noyes,  39  Me.  384  (1855) ; 
Ellicott  V.  Martin,  6  Md.  509  (1854) ;  Paton  v.  Coit,  5  Mich.  505  (1858) ;  Clark  v.  Pease, 
41  N.  H.  414;  Garland  v.  Lane,  46  Id.  245;  Perkins  v.  I^out,  47  Id.  389  (1807) ;  Farm- 
ers', etc.,  Bank  V.  Koxon,  45  N.  Y.  762  (1871) ;  Nickerson  v.  Ringer,  76N.  Y.  279  (1S79) ; 
Sperry  v.  Spalding,  45  Cal.  344  (1873).  In  Alabama  want  of  consideration,  like  fraud 
casts  the  burden  on  the  bolder.  Wallace  v.  Bank,  1  Ala.  567;  Mars^ton  v.  Forward, 
5  Id.  347 ;  Thompson  v.  Armstrong,  7  Id.  256;  Boyd  v.  Mclver,  11  Id.  822  (1874) ;  Ross 
r.  Dunham,  35  Id.  434  (l.-OO).  But  the  English  rule  is  that  where  there  is  "no  fraud 
nor  any  suspicion  of  fraud,  but  the  simple  fact  is  that  the  defendant  received  no 
consideration  fer  his  acceptance,  the  iilaintilf  is  not  called  upon  to  prove  that  ho 
gave  value  for  the  bill."  Whilakerr.  Edniumls,  1  M.&R.,1  Ad.  &  Ell.  638,  overruling 
Thomas  r.  Newton,  2  C.  &  P.  006,  and  Heath  r  Sanson,  2  B.&  Ad.  291.  And  sec  PLob- 
inson  v.  Reynolds,  2Q.  B.  634;  Baileyv.  Bidwell,  13  M.  &  W.  72;  Berry  t-.  Alderman, 
14  C.  B.  95 ;  Smith  r.  Brame,  10  Q.  B.  244.  And  the  same  rule  is  followed  in  most  of 
the  States.  Holmo  r.  Karpser,  5  Binney,  465 ;  Knight  v.  Pugh,  4  AV.  &  S.  445 ;  Sforton 
f.  Rogers, 14  Wend.  570;  Rogers  v.  Morton,  12  Id.  484;  Vallicr  r.  Zane,  6  Gratt.216; 
Wilson  t'.  Lazier,  11  Gratt.  477;  Tucker  r.  Morrill,  1  Allen,  528  (1861). 

«  Goodman  v.  Simonds,  20  How.  313  (1857) ;  Lehman  v.  Tallahassee  Manfg.  Co.,  64 
Ala.  567  (1879) ;  First  Nat.  Bank  v.  Green,  43  N.  Y.  298  (1871). 


78  PKESUMrriYE  evidence.  [rule  15. 

II.  In  an  action  on  a  promissory  note  bj'  the  holder  against  the  indorser, 
it  is  not  alleged  that  the  plaintiff  is  a  holder  for  value.  This  is  pre- 
sumed.^ 

III.  An  action  is  brought  on  a  negotiable  promissory  note  indorsed  to 
the  payee  in  blank.  The  defense  is  failure  of  consideration.  The  pre- 
sumption is  that  it  was  transferred  to  the  plaintiff  on  the  day  of  its 
date. 2 

IV.  A  note  is  indorsed  without  date.  The  presumption  is  that  the 
indorsement  was  made  before  the  note  became  due.' 

"  The  law  was  thus  framed  and  has  been  so  adminis- 
tered," it  was  said  in  case  I.,  "in  order  to  encourage  the 
free  circulation  of  negotiable  paper  by  giving  confidence 
and  security  to  those  who  receive  it  for  value ;  and  this 
principle  is  so  comprehensive  in  respect  to  bills  of  exchange 
and  promissory  notes  which  pass  by  delivery,  that  the  title 
and  possession  are  considered  as  one  and  inseparable,  and 
in  absenceof  any  explanation,  the  law  presumes  that  a  party 
in  possession  holds  the  instrument  for  value  until  the  con- 
trary is  made  to  appear,  and  the  burden  of  proof  is  on  the 
party  attempting  to  impeach  the  title.  These  principles 
are  certainly  in  accordance  with  the  general  current  of 
authorities  and  are  believed  to  correspond  with  the 
general  understanding  of  those  engaged  in  mercantile 
pursuits." 

In  case  H.  it  was  said  :  "It  does  not  expressly  appear  in 
the  declaration  that  the  indorsees  are  holders  for  value. 
Value  is  implied  in  every  acceptance  and  indorsement  of  a 
bill  or  note.  The  burden  of  proof  rests  upon  the  other 
party  to  rebut  the  presumption  of  validity  and  value  which 

1  Clark  V.  Schneider,  17  Mo.  295  (1852) ;  Poorman  v.  Millls,  35  Ciil.  118  (1808). 

2  Noxon  V.  De  Wolf,  10  Gray,  343  (18.58).  In  Kanj,'er  v.  Gary,  1  Mote.  3Gil,  it  was 
eaid:  "A  negotiable  note  being  otFercd  in  evidence  duly  indorsed,  thie  legal  pre- 
sumption is  tliat  such  indorsement  was  made  at  the  date  of  tlie  note,  or  at  least 
antecedently  to  its  becoming  due;  and  if  the  defendant  would  avail  himself  of  any 
defense  that  would  be  open  to  hira  only  in  case  the  note  was  negotiated  after  it  was 
dishonored,  it  is  incumbent  on  him  to  show  that  the  indorsement  was  in  fact  made 
after  tlie  note  was  overdue.'.'  Stevens  v.  Bruce,  21  Pick.  193 ;  Webster  v.  Lee,  5  Mass. 
534;  Hendricks  v.  Judah,  1  Johns.  319. 

3  Mobley  v.  Kyan,  14  111.  51  (1852);  Pettis  v.  WesUake,  3  Scam.  5:55;  Walker  v. 
Davis,  33  Me.  516  (1851) ;  McDowell  v.  Goldsmith,  6  Md«  319  (1854) ;  Hopkins  v.  Kent, 
17  Id.  117  (18e0). 


RULE    15.]         BUSINESS   AND   UNOFFICIAL   ACTS.  79 

the  law  raises  for  the  protection  and  support  of  negotiable 
paper." 

In   case   III.  it  was    said:    "In   Parkin  v.    Moore, ^    it 
was   held    by  Baron  Alderson   that  the   burden  of    piov- 
infT    that    the   note   was  indorsed    after    it   was    overdue 
was  upon  the  defendant,  where  he  sought  to  defend  by 
showing  such  facts  as  would  constitute  a  good  defense  to  a 
dishonored  note,  and  this  ruling,  being  submitted  to  the 
other  judges,  was  confirmed  by  them.     It  may  be  that 
under  the  more  precisely  accurate  use  of  the  term  '  burden 
of  proof '  as  now  held  by  the  court,  it  would  have  been 
more  correct  to  say  that  upon  the  production  by  the  holder 
of  a  negotiable  promissory  note,  indorsed  in  blank,  the 
legal  presumption  is  that  it  was  indorsed  at  its  date,  and  it 
is  incumbent  on  the  defendants  to  overcome  that  presump- 
tion by  evidence.     This  must  have  been  so  understood  in 
the  present  case,  as  the  plaintiff  had  already  produced  a 
note  thus  indorsed,  and  the  question  was  upon  the  effect 
of  the  testimony  offered,  to  show  that  it  was  indorsed  after 
overdue.     Upon  such  a  state  of  the  case,  it  was  the  duty  of 
the  defendants  to  offer  sufficient  evidence  to  control  the 
legal  presumption  arising  from  the  indorsement  of  theuuie. 
In  ihis  sense  the  burden  was  upon  the  defendants." 

B. 

I.  In  an  action  on  a  bill  of  exchanjje  by  an  indorsee  against  the  acceptor, 
there  is  evidence  that  the  bill  has  been  procured  by  a  fraud  upon  the 
defendant.  This  casts  the  burden  of  proving  that  he  paid  value  for  it  uu 
the  plaintiff.* 

II.  In  answer  to  an  action  on  a  promissory  note  the  defendant  pleads 
that  it  was  illegalin  its  Inception  and  that  the  plaintiff  took  it  without 
value.  The  illegality  is  proved.  The  burden  is  cast  on  the  plaintiff  to 
show  value.* 

III.  A  check  on  a  bank  is  given  by  S.  to  C,  for  a  gaming  debt.  It  is 
transferred  toF.,  who  brings  suit  on  it  against  S.  The  burden  ib  upon 
F.  to  prove  that  he  took  it  bona  fide  and  for  value.* 

J  7  0.  &  P.  408. 

*  Ross  f.  Dnukard.  35  Ala.  434  (ISGO) ;  Royd  v.  Mclver,  11  Id.  S23  (1847.) 
'  Cailey  t'.  Diilwell,  13  Jr.  &  W.  74  (l.>*44). 

*  Fuller  V.  UulcUius,  10  Cal.  5'23  (ISJS). 


80  PRESUMPTIVE   EVIDENCE.  [llULE    15. 

"  "When,"  it  was  said  in  case  I.,  "  the  drawer  or  acceptor 
of  a  bill  of  exchange  has  proved  that  it  was  procured  by 
fraud  *  *  *  the  presumption  that  the  indorsee  paid 
value  is  overcome,  and  it  is  incumbent  upon  him  to  prove 
that  fact  before  he  can  claim  the  protection  which  is 
vouchsafed  by  the  law  to  a  purchaser  for  value  without 
notice." 

In  case  II.  Baron  Parke  said:  "  It  certainly  has  been  the 
universal  understanding  that  if  the  note  were  proved  to 
have  been  obtained  by  fraud  or  affected  by  illegality,  that 
afforded  a  presumption  that  the  person  who  had  been  guilty 
of  illegality  would  dispose  of  it,  and  would  place  it  in  the 
hands  of  another  person  to  sue  upon  it ;  and  that  such  proof 
casts  upon  the  plaintiff  the  burden  of  showing  that  he  was 
a  bona  fide  indorsee  for  value." 

""With  checks,"  it  was  said  in  case  III.,  "as  with 
promissory  notes,  the  presumption  is  that  they  are  given 
upon  a  valid  consideration,  but  this  presumption  being 
rebutted,  the  necessity  is  thrown  upon  the  holder  of  prov- 
ing: that  he  received  it  in  o-ood  faith,  without  notice  of  the 
illegality  of  the  consideration." 

A  note  payable  one  day  after  date,  it  is  held  in  Geor- 
gia, is  not  entitled  to  this  presumption.  "  This  position," 
it  was  said,  "assumes  that  the  onus  lies  on  the  defendant 
to  show  that  the  plaintiff  took  the  note  after  its  maturity. 
Ordinarily,  that  is  when  the  note  has  some  time  to  run 
from  execution  to  maturity,  this  is  true;  but  we  do  not 
think  that  principle  applies  to  notes  like  this  due  one  day 
after  date;  for  the  time  run  is  so  short  that  it  is  not  prob- 
able that  it  should  be  put  in  circulation  before  maturity,  at 
least  not  sufficiently  so  to  raise  such  a  presumption  of  the 
holder.  Notes  given  due  and  payable  at  the  time  of  their 
execution  or  at  one  day  after  date,  do  not  belong  to  that 
class  of  paper  intended  for  negotiation  and  circulation  for 
commercial  purposes,  in  which  all  the  presumptions  are  in 
favor  of  the  holder  in  order  to  protect  innocent  purchasers 
and  to  encourage  and  foster  their  circulation ;   but  they  are 


RULE    17.]         BUSINESS    AND    UNOFFICIAL   ACTS.  81 

given  more  us  an  evidence  of  indebtedness  by  the  maker  to 
the  payee."  ^ 

RULE  IG .  —  The  presumption  is  that  any  act  done  was 
done  of  right  and  not  of  wrong. 

Illustrations. 

I.  A  lease  of  dwelling  houses  contains  a  covenant  on  the  part  of  the 
lessee  that  he  will  not,  without  the  consent  of  the  lessor,  carry  on  any 
trade  in  any  house.  He  afterwards  converts  one  of  them  into  a  public 
house  and  grocery,  and  the  lessor,  with  knowledge  of  it,  receives  the 
rent  for  more  than  twenty  years.  The  presumption  is  that  the  lessor  has 
licensed  this  use.* 

II.  An  action  is  brought  on  a  contract  for  goods  sold.  The  goods  are 
proved  to  be  liquors.  The  presumption  is  that  the  plaintiff  was  duly 
licensed  to  sell  tliem.' 

*♦  It  is  a  maxim  of  the  law  of  England,"  it  was  said  in 
case  I.  *'  to  give  effect  to  every  thing  which  appears  to  have 
been  established  for  a  considerable  length  of  time,  and  to 
presume  that  what  has  been  done  was  done  of  right  and 
not  in  wrong.  That  practically  has  caused  a  series  of  tres- 
passes to  constitute  a  right  so  that  it  may  be  said,  a  right 
has  grown  out  of  proceedings  which  are  wrongful.  But  in 
truth  it  is  nothing  more  than  giving  effect  to  notorious  and 
avowed  acquiescence.  No  person  would  have  permitted  a 
covenant  to  be  broken  for  more  than  twenty  years,  unless 
he  was  aware  that  it  was  broken  as  a  matter  of  right.  It  is 
not  necessary  in  point  of  form  to  send  the  case  to  a  jury 
to  find  the  facts  which  the  judge  may  tell  them  they  ought 
to  presume." 

KXJLiE  17.  —  The  performance  of  a  mere  moral  duty  is 
not  presumed. 

Illustrations. 

I.  A.  sells  goods  to  B.  and  B.  sells  them  to  C.  C.  sends  his  clerk  to 
get  them  (they  being  still  in  A.'s  possession),  and  they  are  delivered  to 

1  P.call  V.  LeaTcrctt,  32  Ga.  105  (1S61). 

2  Gibson  v.  Doeg,  2  II.  &  N.  HI.')  (18.57). 

3  Horan  v.  Weiler,  41  Penu.  St.  •470  (lS62j. 

6 


82  PRESUMPTIVE   EVIDENCE.  [RULE    18. 

the  clerk  on  his  promise  that  C.  vriW  pay  A.  In  an  action  by  A.  against 
C.  no  presumption  arises  that  the  clerk  communicated  his  bargain 
to  C.i 

*'I  am  clearly  of  opinion,"  said  Willes,  J.,  in  case  I., 
**  that  there  was  no  evidence  that  C.  authorized  or  rati- 
fied the  promise  made  by  his  clerk.  There  being  no  original 
authority  in  him  to  make  the  promise,  it  was  a  thing  done 
by  him  out  of  the  ordinary  scope  of  his  duty;  and  although 
there  was  a  moral  duty  cast  upon  him  to  communicate  to 
his  employer  the  fact  of  his  having  made  the  promise,  it  was 
nothing  more  than  a  moral  duty,  and  the  omnia  prcesiwi- 
untur  rite  esse  acta  donee  probetur  in  contrarium  is  never 
applied  to  such  a  duty  as  that.  There  is,  therefore,  no  pre- 
sumption, either  that  the  clerk  did  or  did  not  perform  that 
duty;  and  in  the  absence  of  positive  evidence  that  the 
promise  was  communicated  to  C,  the  jury  would  not  have 
been  warranted  in  assuming  that  it  was  merely  because  the 
evidence  was  equally  consistent  with  either  supposition." 

RUIiE  18.  —  Documents  regular  on  their  face  are  pre- 
sumed to  have  been  properly  executed,  and  to  have 
undergone  all  formalities  essential  to  their  validity .- 

niiistrations. 

I.  A  copy  of  an  agreement  in  the  hands  of  the  opposite  party  is 
offered  in  evidence.  It  is  objected  that  it  must  be  first  proved  to  be 
stamped  as  required  by  statute.  The  presumption  is  that  the  original 
is  stamped.' 

II.  A  statute  provides  that  no  recovery  can  be  had  on  a  foreign  bill  of 
exchange  unless  stamped  at  the  time  it  is  transferred.     In  an  action  on 

1  Fitzgerald  v.  Dressier,  7  C.  B.  (N.  S.)  375  (1850). 

2  Freeman  v.  Thayer,  33  Me.  76  (1851);  Munroe  v.  Gates,  4S  Id.  463  (1860);  see 
Stevens  v.  Tafft,  3  Gray,  487  (1855) ;  Sadler  v.  Anderson,  17  Tex.  245  (1856) ;  Diehl  v. 
Emig,  65  Penn.  St.  327  (1870);  Roberts  v.  Pillow,!  Hempst.  6:54  (ISoi);  Re  British, 
etc.,  Assurance  Co.,  1  DeG.,  J.  &  S.  488  (1863) ;  Lane's  Case,  Id.  504. 

3  Crisp  V.  Anderson,  1  Stark.  35  (1815).  "Am  I  to  presume  that  this  agreement 
is  unstamped  in  lavor  of  a  defendant  who  refuses  to  produce  it?  I  ought  rather  to 
presume  omnia  rite  acta  particularly  after  notice.  I  shall  assume  it  to  have  been 
stamped  until  the  contr.iry  appears."  Per  Ellenborough,  C.  J.,and  see  Closmadeuc 
V.  Carrel,  18  C.  B.  36  (1H56) ;  Pooley  v.  Goodwin,  4  Ad.  &  EU.  94  (1835) ;  Hart  v.  Hart 
1  Hare,  1  (1841). 


RULE    18.]        BUSINESS   AND   UNOFFICIAL   ACTS.  83 

a  foreign  bill  of  exchange,  the  stamp  is  on  the  document  when  produced 
at  trial;  but  there  is  no  evidence  that  it  was  po  when  inclorsed  to  plain- 
tiff. The  presumption  is  that  it  was  so  stamped  at  the  lime  of  the 
transfer. 1 

III.  An  action  of  ejectment  is  brought  on  an  assignment  of  a  term 
to  sicure  the  payment  of  an  annuity.  A  statute  required  that  f<uch 
deeds  to  be  valid  should  be  enrolled.  This  will  be  presumed  to  have 
been  done.' 

IV.  The  law  requires  contracts  to  be  stamped.  A  contract  is  sued  on. 
The  presumption  is  that  it  was  regularly  stamped.' 

V.  A  deed  sent  to  a  foreign  country  to  be  signed  by  a  married  woman  is 
returned  duly  executed,  and  with  an  attestation  clause  that  it  was 
"signed,  sealed,  and  delivered."  There  is  no  mark  of  a  seal.  The  pre- 
sumption is  that  the  deed  was  sealed.* 

VI.  A  deed  concludes,  "  as  witness  our  hands  and  seals,"  and  the 
attestation  clause  speaks  only  of  the  "  signing  and  sealing."  The  pre- 
sumption is  that  it  was  duly  delivert-d.* 

VII.  The  attestation  of  a  deed  is  in  the  usual  form.  The  attesting 
witness  testifies  that  he  saw  the  party  sign  it,  but  does  not  remember 
that  it  was  sealed  and  delivered.    These  things  will  be  presumed." 

VIII.  A  witness  to  prove  the  execution  of  a  bond  does  not  recollect 
whether  at  the  time  it  was  executed  it  had  any  seal.  The  bond  con- 
tained the  words,  "sealed  with  our  seals,"  and  had  a  seal  at  the  time  of 
the  trial.    The  presumpt.ou  is  that  there  was  a  seal  w  heu  executed." 

IX.  A  person's  signature  to  a  deed  is  proved,  i.e.,  that  it  is  his  hand- 
writing.   The  sealing  and  delivery  of  the  deed  is  presumed.* 

X.  Two  deeds  bear  date  on  the  same  dny.  A  priority  of  execution 
will  be  presumed  to  bear  out  the  clear  intention  of  the  parties.* 

1  Bradlaugh  v.  DeRen,  L.  R.  3  C.  P.  28G  (1868), and  see  Marine  Investment  Co.  v. 
Haviside,  L.  R.  5  II.  L.  Cas.  624  (1872)  -wlK-re  Lord  Cairns  said:  "  1  take  it  to  be 
clear  lliat  if  an  instrument  is  lost,  and  if  there  should  be  no  evidence  given  respect- 
ir.git  on  one  side  or  the  other,  the  presumption  which  ought  always  to  be  made  and 
which  always  would  be  made  by  this  court  would  be  that  the  iustrumeut  was  prop- 
erly stamped." 

-  Griffin  V.  Mason,  3  Camp.  7  (ISU). 

s  Thayer  i-.  Barney,  12  Minn.  513  (1867) ;  Smith  v.  Jordan.  13  Id.  2M  (1868)). 

*  Re  Saudilands,  L.  R.  6  C.  V.  411  (1871). 

s  Hall  V.  Baiubridge,  12  Q.  B.  G99  (1S48). 

6  r.nrling  v.  Patterson,  9  C.  &  I'.  570  (1840). 

'  r.all  r.  Taylor,  1  C.  &  P.417  (1S24). 

8  Grellier  v.  Xcale,  1  Peake,  109  (1818) ;  Talbot  v.  Hodson,  7  Taunt.  251  (1816) ;  Re 
Huckvale,  L.  R.  1  P.  &  D.  ,375  (1867) ;  Adam  v.  Kerr,  1  B.  &  P.  3ii') ;  Andrews  v.  Mot- 
Icy,  12  C.  B.  (>'.  s.)  526;  Vermicombe  v.  Butler,  3  Sw.  &  T.  5S0;  SpcUsburg  v.  Bur- 
dett,  10  Bl.  &F.  810. 

»  Atkyns  v.  Horde,  1  Burr.  106  (1757) 


1# 


84  PKESUMPTIVE   EVIDENCE.  [RULE    18. 

XI.  Property  is  conveyed  by  lease  and  release  in  one  deed.  Priority 
of  execution  of  the  lease  will  be  presumed. ^ 

XII.  In  a  conveyance  of  land,  the  grantor  described  himself  as  exec- 
utor of  him  in  whom  the  title  last  was.  The  presumption  is  that  there 
was  a  will.* 

XIII.  A  mortgage  for  purchase  money  given  at  the  time  a  deed  from 
A.  to  B.  was  made  is  produced,  and  is  executed  with  proper  formality. 
The  deed  is  lost.  The  presumption  is  that  it,  also,  was  properly  exe- 
cuted.3 

XIV.  A  number  of  deeds  are  made  to  convey  property  to  different 
persons,  but  it  does  not  appear  which  was  made  iirst.  The  presumption 
is  that  they  were  made  in  proper  order.* 

XV.  A  deed  is  made  to  A.  and  B.  jointly.  The  presumption  is  that 
they  are  equally  interested.* 

XVI.  A  warehouseman's  receipt  and  guaranty  indorsed  thereon  are  pro- 
duced.   The  presumption  is  that  they  were  executed  at  the  same  time.* 

XVII.  There  is  no  proof  when  a  deed  was  delivered.  The  presump- 
tion is  that  it  was  delivered  on  the  day  it  bears  date.' 

XVIII.  A  deed  expresses  on  its  face  that  the  consideration  was  paid 
by  the  wife.     The  presumption  is  that  it  was  her  own  money .^ 

XIX.  A  deed  is  duly  attested.  The  presumption  is  that  it  was  duly 
delivered.'' 

XX.  A  consideration  in  a  deed  is  not  expressed.  It  is  presumed  to  be 
the  value  in  money  of  the  property.'** 

XXI.  A  plaintiff  declares  on  a  certain  contract  which  the  statute 
requires  to  be  in  writing.    The  presumption  is  that  it  is  in  writing. '^ 

XXII.  A  'bill  of  complaint  is  brought  on  a  certain  agreement.  It 
does  not  state  whether  it  is  in  writing  or  not.  If  not  in  writing  it  would 
be  void  by  statute.    The  presumption  is  that  it  is  in  writing. i^ 

1  Barker  v.  Keets,  1  Freem.  2.il  (167S) ;  Brice  v.  Smith,  Welles,  1  (1737). 

2  Maverick  v.  Austin,  1  Bailey,  59  (1828). 

3  Godfrey  V.  Disbrow,  Walk.  (Mich.)  260  (1S43). 

<  Dudley  v.  Cadwell,  19  Conn.  219  (1818).  .  But  see  Bissell  v.  Nooney,  33  Conn.  441 
(18C6). 

5  Lonf?  r.  McDougald,  23  Ala.  413  (1853). 

6  Underwood  v.  Ilossack,  33  111.  208  (1865). 

'  Smiley  ^'.  Fries,  104  111.  416  (1882);  Teoitle  t'.  Snyder,  41  N.  Y.  397  (1S69) ;  Deininger 
V.  McConnell,  41  111.  227  (1866) ;  Hardin  v.  Crate,  78  111.  533  (1875). 

8  Stall  V.  Fulton,  30  X.  J.  (L.)  430  (1803).  "  If  the  whole  of  certain  premises  are 
conveyed  for  a  given  price,  the  necessary  presunijition  is  that  some  portion  of  that 
price  is  paid  and  received  for  every  portion  of  the  premises."  Nutting  v.  Herbert, 
S7  N.  II.  350  (1858). 

9  Powers  V.  Russell,  13  Pick.  69  (1832). 

1"  Clements  v.  Laudman,  20  Ga.  401  (1858). 

M  Gibbs  V.  Nash,  4  Barb.  419  (1848) ;  Coles  v.  Bowne,  10  Paige,  520  (1S44). 

12  Printup  V.  Johnson,  19 Ga.  75  (1855). 


RULE    18. J         BUSINESS   AND   UNOFFICIAL   ACTS.  85 

XXIII.  Tliere  is  no  proof  whether  the  signature  of  tlie  malcor  of  a  deed 
or  the  subscribing  witness  was  made  lirst.  The  presuiuptiou  is  that  the 
maimer  signed  it  lirst. i 

XXIV.  A  mortgage  is  executed  on  land  in  B.  It  is  presumed  to  have 
been  executed  in  the  place  whore  the  laud  is  situated.'' 

XXV.  Real  estate  is  sold  by  A.  and  B.  jointly,  and  A.  receives  all  the 
proceeds.  The  presumption  is  that  A.  aud  B.  arc  joint  owners,  and 
that  cue-half  the  proceeds  belongs  to  each.' 

XXVI.  It  is  uncertain  whether  a  mortgage  was  paid  before,  at,  or 
after  tlie  time  it  was  due.  The  presumption  is  that  it  was  paid  on  the 
day  it  was  due.* 

XXVII.  In  laying  out  a  town  the  lots  are  numbered  in  regular  arith- 
metical order.  The  lots  are  of  one  hundred  acres  each.  The  presump- 
tion is  that  they  are  located  contiguous  to  each  other,  and  that  lot  "  t> '' 
includes  all  the  land  between  "7"  and  "9."  ^ 

"  It  would  be  very  inconvenient,"  it  was  saifl  in  case  IT., 
"  for  the  plaintiff  to  be  required  to  prove  that  the  stamps 
were  on  the  bills  before  their  first  indorsement  to  an  English 
holder,  as  required  b}'-  the  act.  There  was  prima  facie 
evidence  that  the  act  had  been  complied  with,  and  it  was 
for  the  defendant  to  give  evidence  to  rebut  that." 

In  case  III.,  Lord  EUenborough  said:  "  If  the  annuity 
was  not  duly  enrolled,  that  proof  should  come  from  the 
other  side.  Here  is  an  assignment  executed  by  the  plain- 
tiff. I  will  presume  it  to  be  valid  until  the  contrary  is 
shown." 

In  case  IV.,  Bovill,  C.  J.,  said :  "  I  think  there  is^;?'/^?^ 
facie  evidence  that  this  deed  was  sealed  at  the  time  of  its 
execution  and  acknowledgment  by  the  parties.  To  consti- 
tute a  sealing,  neither  wax  nor  wafer,  nor  a  piece  of  paper, 
nor  even  an  impression  is  necessary.  Here  is  something 
attached  to  this  deed  which  may  have  been  intended  for  a 
seal,  but  which  from  its  nature  is  incapable  of  retaining  an 
impression.     Coupled  with  the  attestation  and  the  certili- 

1  Hughes  V.  Dcbnam,  ft  Jones  (L.),  129  (1860). 

2  Thayer  f.  iMursli,  11  IIuii,  501  (1877). 

s  Adams  v.  Leaveus,  20  Conn.  73  (1849). 

*  Johnson  v.  Carpenter,  7  Minn.  17G  (1862). 

t"  VVarreu  r.  rierce,  C  .Me.  1  (1S29) ;  19  Am.  Dec.  ISO. 


86  PRESUMPTIVE  EVIDENCE.        [rULE  18 

cate,  I  think  we  are  justified  in  granting  the  application 
that  the  deed  and  other  documents  may  be  received  and 
filed  by  the  proper  officer."  Byles,  J.,  said:  "I  am  of 
the  same  opinion.  The  sealing  of  a  deed  need  not  be  by 
moans  of  a  seal ;  it  may  bo  done  with  the  end  of  a  ruler  or 
anything  else.  Nor  is  it  necessary  that  wax  should  be  used. 
The  attestation  clause  says,  that  the  deed  was  signed,  sealed, 
and  delivered  by  the  several  parties;  and  the  certificate  of 
the  two  special  commissioners  says  that  the  deed  was  pro- 
duced before  them,  and  that  the  married  women  '  acknowl- 
edged the  same  to  be  their  respective  acts  and  deeds.'  I 
think  there  was  prima  facie  evidence  that  the  deed  was 
sealed."  And  Smith,  J.,  added  :  "Something  was  done 
with  the  intention  of  sealing  the  deed  in  question.  I  con- 
cur in  granting  this  application,  on  the  ground  that  the 
attestation  is  prima  facie  evidence  that  the  deed  was 
sealed,  and  that  there  is  no  evidence  to  the  contrary." 

In  case  VIII.,  Best,  C.  J.,  said  that  if  sealing  and  deliv- 
ery were  not  presumed,  and  the  proof  had  to  rest  upon 
the  fallible  memory  of  a  witness  at  a  distance  of  time,  as 
to  whether  all  the  requisites  were  performed  at  that  time, 
great  danger  would  result  to  every  kind  of  instrument  after 
the  lapse  of  years ;  and  a  member  of  the  bar  mentioned 
that  he  was  once  engaged  in  a  case  in  which  the  lord  chan- 
cellor held  that  similar  evidence  to  that  here  produced  was 
sufficient  to  raise  the  presumption  that  everything  neces- 
sary was  done,  and  that  to  rebut  such  presumption  the  con- 
trary must  be  distinctly  proved. 

"  Where  a  deed  with  the  regular  evidence  of  its  execution 
upon  the  face  of  it  is  found  in  the  hands  of  the  grantee,  the 
presumption  is  that  it  has  been  duly  delivered."^  So 
where  each  one  of  several  joint  owners  of  land  takes  into 
his  possession  separate  parcels  of  the  land,  and  the  land  is 
then  separately  held  and  claimed  during  many  years,  the 
presumption  arises  that  a  partition  thereof  was  made  be- 

1  Ward  V.  Lewis,  4  Pick,  51S  (1827). 


RULE    18.]         BUSINESS   AND   UNOFFICIAL   ACTS.  87 

twocn  the  parties,  under  -which  partition  it  h;is  been  thus 
held  and  enjoyed.^ 

"  Much  is  to  be  presumed  in  favor  of  ancient  deeds  if 
accompanied  by  possession,  and  the  same  rule  may  be 
applied  to  wills  and  to  levies  of  executions  to  some 
extent."  ^ 

In  case  XXII.  it  was  said:  "The  bill  is  silent  as  to 
whether  the  an;reement  was  in  writing  or  not.  If  the 
agreement  was  such  a  one  that  it  was  required  to  be  in  writ- 
ing by  the  Statute  of  the  Frauds,  then  it  is  to  be  presumed 
until  the  contrary  is  shown,  that  the  agreement  was  in 
writing,  for  it  is,  in  general,  to  be  presumed,  until 
something  to  the  contrary  be  shown,  that  no  man  does  what 
the  law  forbids  or  what  the  law  declares  shall  be  invalid." 

In  case  XXVII.  it  was  said:  "It  is  the  well  known 
practices  of  proprietors  of  townships  in  this  State,  to  have 
them  surveyed  out  iu  ranges  and  lots,  causing  both  to  be 
numbered  in  regular  sequence.  They  then  sell  by  the 
number  of  the  lot  and  range,  without  a  more  particular 
description,  and  the  purchaser  is  entitled  to  his  lot 
according  to  its  actual  location,  as  made  by  the  survey, 
if  that  can  be  ascertained,  if  not,  it  is  to  be  located 
from  the  plan  of  actual  admeasurement.  The  plaintiffs 
are  the  owners  of  number  ei";ht,  in  the  first  ranjre  east 
in  Baldwin,  the  plan  of  the  town  is  lost,  there  is  no  ques- 
tion about  the  range  lines,  between  w^hich  number  eight 
lies.  The  plaintiffs  show  where  numbers  seven  and  nine 
are;  and  these  lots  are  located  beyond  controversy.  The 
judge  instructed  the  jury  that  number  eight  must  be 
presumed  to  extend  from  seven  to  nine  ;  and  that  the 
burden  of  proof  was  upon  the  party  interested  to  show  a 
different  location  to  do  so  by  satisfactory  evidence.  lie 
would  have  been  justitied  in  using  stronger  lanfruaire  :  and 
in  stating  that  eisrht  did  and  must  extend  from  seven  to 
nine,  unless  a  different  original  location  could   be  shown. 

1  nussell  V.  Marks,  3  Mete.  (Ky.)  37  (ISCO) ;  Munroe  r.  Gates,  48  Me.  4G3  (1S60). 
3  Uill  V.  Lord,  Id  Mo.  iiji  (.1661)  ;  liouU  v.  Soarrell,  3  Burr.  1773  (17C1). 


88  TEESUMFTIVE   EVIDENCE.  [rULE    18. 

The  burden  of  proof  is  doubtless  upon  the  phiintiffs  to 
make  out  their  case  ;  but  when  they  show  the  range  lines 
between  which  their  lot  is  founded,  and  the  side  lines  of  the 
lots  next  below,  and  next  above  theirs  in  number,  they  have 
located  their  lot,  and  made  out  their  case ;  if  it  be  not 
successfully  controverted  by  opposing  testimony.  The 
proprietors  voted,  it  seems,  to  lay  out  their  town  in  one  hun- 
dred-acre lots.  But  it  is  of  no  consequence  what  they 
proposed  or  intended  to  do  ;  the  question  is,  what  they  have 
done,  by  their  surveyors  or  other  agents  duly  authorized. 
Their  intention,  as  manifested  by  their  vote,  was  very  inac- 
curately executed  ;  some  of  the  lots  exceeding  the  quantity, 
which  is  not  unusual,  from  the  liberal  admeasurement 
formerly  made  ;  and  some  falling  short  of  the  number  of 
acres  proposed,  which  has  less  frequently  happened.  It  is 
conceded  that  eight  ought  to  adjoin  seven,  because  the  sur- 
veyor must  have  begun  at  one  and  progressed  onwards ;  but 
it  is  argued  that  it  would  not  conclusively  follow  that 
it  would  extend  to  nine;  especially  in  the  present 
instance,  where  the  plaintiff  claims  two  hundred  acres, 
instead  of  one  hundred,  to  which,  it  is  insisted,  his 
lot  should  be  restricted ;  and  that  it  ought  rather  to 
be  presumed  that  the  surveyor  dropped  or  omitted  a 
lot  in  his  numbering.  But  it  must  be  considered  that 
there  is  precisely  the  same  reason  for  presuming  that  nine 
adjoins  eight,  as  that  eight  adjoins  seven.  The  line,  there- 
fore, adjoining  seven  is  no  better  established  than  that  which 
adjoins  nine.  If  the  defendant  could  have  shown  original 
corners,  or  a  line  dividing  the,  space  between  seven  and 
nine,  the  case  would  have  been  differently  presented.  But 
the  burden  of  proof  was  upon  him  to  do  this;  and  as  he 
failed  to  do  it,  ci^ht  must  be  located  as  it  stands  numeri- 
cally  adjoining  seven  on  one  side,  and  nine  on  the 
other.  Selling,  as  the  proprietors  do,  by  the  number  of  the 
lot  and  of  the  range,  the  range  and  lot  lines  are  referred  to 
as  monuments,  and  when  found,  will  govern  and  control 
courses,  distances  and  quantities." 


RULE    18.]        BUSINESS   AND   UNOFFICIAL   ACTS.  89 

Sul>-RuIo  1.  —  Dates  are  presumed  to  he  correct^  u-hen 
found  in  written  instruments  (A),  hut  are  no  evidence 
of  collateral  facts  (B). 

Illustrations. 


I.  In  an  action,  to  prove  notice  of  certain  facts  to  a  person  at  a  certain 
time,  it  is  proposed  to  read  certain  letters  written  by  him  at  that  time. 
There  is  nothing  to  show  that  they  were  ■written  at  tliat  time  except  tlieir 
date.  The  presumption  is  that  they  were  written  at  the  time  they  bore 
date.i 

II.  The  question  is,  at  what  time  a  bill  of  exchange  was  issued.  The 
presumption  is  it  was  issued  at  the  time  it  bears  date.^ 

III.  The  question  is,  when  a  certain  payment  was  made.  A  receipt  is 
produced  dated  September  8th.  The  presumption  is  that  it  was  made  on 
that  day. » 

lY.  The  day  of  the  execution  of  a  deed  is  disputed.  The  presumption 
is  that  it  was  executed  on  the  day  it  bears  date.* 

V.  There  are  certain  indorsements  on  a  promissory  note  of  receipt  of 
interest.  It  being  material  to  know  at  what  time  they  were  made,  the 
presumption  is  that  they  were  made  at  the  time  they  bear  date.* 

VI.  A  deed  is  dated  April  3d.  The  presumption  is  that  it  was  exe- 
cuted on  that  day.^ 

VII.  A  note  is  dated  July  1, 187-i.  The  presumption  is  that  it  was  exe- 
cuted on  that  day.' 

VIII.  An  assignment  is  dated  on  a  certain  day.  The  presumption  is 
that  it  was  made  on  that  day.^ 


1  Potez  V.  Glospop,  2  Ex.  102  (1S48) ;  Sinclair  v.  Rappalpy,  4  M.  Sc  "W.  312;  >ralr.as 
V.  Clement,  10  L.  J.  (Q.  B.)  -135  (ia")0) ;  Butler  v.  Mountgarrct,  7  H.  L.  Cas.  647  (is.">0) ; 
Morgan  r.  Whitmore,  6  Ex.  713  (1851) ;  Bakerr.  Melburn,  2  M.  &  W.  8.53  (18.37) ;  Hunt 
V.  Massey,  1  B.  &  Ad.  903  (1834) ;  Piillen  r.  Hutchinson,  25  Me.  240  (1845)  ;  MeMnim  v. 
Clark,  Morns  (la.),  1.30  (1841);  Abrama  r.  Pomcroy,  13  HI.  133  (1851);  M'illiams  v. 
"Woods,  16  Md.220  (1860) ;  Bruck  v.  Cole,  4  Saudf.  80  (IS.iO). 

2  Anderson  v.  Weston,  6  Bing.  (X.  C.)  206  (1840)  ;  Laws  v.  Kand,  3  C.  B.  (v.  s.) 
445  (1857) ;  Claridge  v.  Kleet.  15  Pa.  St.  255  (1850).  An  exception  exists  in  the  English 
court3  in  the  case  of  proof  of  a  petitioning  creditor's  debt  in  bankruptcy  proceed- 
ings.   Wright  r.  Lawson,  2  M.  &  W.  7.39  (1837). 

»  Caldwell  V.  Ganiblo,  4  Watts,  202  (18:55). 

<  Costigan  r.  Gould,  5  Denio,  290  (1848);  PuUen  v.  Hutchinson,  25  Me.  242 
(1845). 

'  Smith  t».  Battens,  1  Moo.  &  R.  341  (1834). 
«  Smith  V.  Porter,  10  Gray,  66  (1857). 
'  Knisely  v.  Sampson, 100  111.  573  (1881). 
«  Byrd  v.  Tucker,  3  Ark.  451  (1840). 


90  PRESUMPTIVE  EVIDENCE.        [rULE  18. 

IX.  A  bill  or  note  is  indorsed  in  blank.  The  presumption  is  that  it 
was  indorsed  on  the  day  of  its  date  or  before  due.^ 

X.  A  name  is  written  on  the  back  of  a  note.  The  presumption  is  that 
it  was  put  there  at  the  time  of  the  making  of  the  note.'' 

XI.  The  question  is  at  what  time  an  action  of  replevin  was  com- 
menced. The  writ  is  produced  bearing  date,  July  11,  1860.  The  pre- 
sumption is  that  the  action  was  commenced  on  that  day.' 

XII.  An  action  is  on  a  'promissory  note.  The  writ  is  dated  April  15, 
183-1,  one  day  before  the  expiration  of  six  years  which  would  bar  the 
action.  It  is  not  served  until  April  24th.  The  presumption  is  that  the 
action  was  commenced  on  April  15th.* 

XIII.  A  written  paper  containing  a  statement  of  mutual  accoTints 
between  a  creditor  and  a  bankrupt  by  whom  it  was  signed,  andbeaiiug 
date  previous  to  the  bankruptcy  shows  a  balance  due  to  the  creditor. 
This  is  prima  facie  evidence  as  against  the  assignees  in  an  action  brought 
by  them  against  the  creditor  that  it  was  written  at  the  time  it  bore  date,* 

XIY.  To  rebut  a  charge  of  cruelty  certain  letters  are  introduced,  writ- 
ten by  the  wife  to  the  husband,  There  is  no  presumption  that  they  were 
written  when  they  were  dated.* 

In  case  III.  it  was  said:  "  The  objection  is  that  there  is 
no  proof,  except  what  appears  on  the  face  of  the  receipt 
itself,  that  it  was  given  on  the  8th  of  September.  *  *  * 
We  have  come  to  the  conclusion  that  the  presumption  is 
that  it  was  fairly  done,  as  the  law  never  presumes  fraud; 
and  that  the  receipt  should  be  received,  with  proper  direc- 
tions from  the  court  that  if  manufactured  by  the  parties  it 
should  be  entitled  to  no  weight.  It  is  a  transaction  in  the 
usual  course  of  business,  as  it  is  well  known  that  receipts 
for  the  payment  of  money  are  frequently  given  without 
witness  of  the  payment." 

*'As  to  the  ^me,"  said  Taunton,  J.,  in  case  V.,  "  I  have 
no  doubt,  if  the  indorsements  were  not  written  at  the  time 


1  ITntchins  v.  Flintge,  2  Tex.  473  (1S40). 

2  BeiUhall  v.  Judkins,  13  Mete.  2G5  (1847). 

'  Fcderhen  v.  Smith,  3  Allen,  119  (18G1) ;  Bunker  v.  Shed,  8  Mete.  150  (1844) ;  Lyie 
V.  Bradford,  7  T.  B.  Mod.  116  (1828) ;  Day  v.  Lamb,  7  Vt.  426  (1835).  But  it  is  not  con- 
clusive. 

*  Gardner  v.  Webber,  17  Pick.  407  (1835). 

6  Sinclair  v.  P.apgaley,  4  M.  &  W.  312  (1838). 

«  Houliston  V.  Smyth,  2  C.  &P.24  (1825). 


RULE    18.]        BUSINESS   AND   UXOFFICIAL   ACTS  91 

they  purport  to  bear  date,  it  lies  on  the  defendant  to  prove 
it;  in  the  absence  of  all  evidence  to  the  contrary,  I  shall 
assume  that  they  were  written  at  the  time  they  bear  date." 

In  case  VI.  it  was  said:  *'  All  deeds  and  contracts  ou^^lit 
regularly  to  be  dated  on  the  day  of  their  execution.  This  is 
important  for  a  great  variety  of  purposes.  The  rights  of 
the  contracting  parties  are  not  unf  requently  made  to  de[)end 
upon  an  accurate  statement  of  time.  Accordingly,  it  is  found 
by  experience,  that  in  the  prudent  management  of  affairs 
this  rule  is  commonly  recognized  as  useful,  and  observed 
with  care,  and  this  being  at  once  the  usual  and  proper  manner 
of  conducting  a  transaction  of  this  kind,  it  may  well  be  con- 
sidered reasonable  and  safe  to  conclude  in  any  particular 
instance,  where  there  is  no  other  evidence  upon  the  subject 
that  any  legal  instrument  by  which  property  is  conveyed, 
was  completed  on  the  day  on  which  it  bears  date.  The 
principle  omnia  prcesumuniur  rile  acta  is  not  confined 
merely  to  official  proceedings  or  the  doings  of  public  bodies, 
but  has  been  extended  to  acts  of  private  individuals, 
expressly  when  they  are  of  a  formal  character  as  writings 
under  seal." 

In  case XII.  it  was  said:  "  The  question  then  is  whether 
the  date  or  the  service  of  the  writ  is  the  commencement 
of  the  action.  It  has  certainly  been  understood  in  Massa- 
chusetts, that  the  day  of  the  date  was  the  commencement 
of  the  action.  It  \s  prima  facie  evidence  only,  and  admits 
of  evidence  to  rebut  the  presumption  arising  from  the 
date;  but  until  rebutted,  the  presumption  is  to  prevail  that 
the  true  date  appears,  and  that  date  is  the  commencement 
of  the  suit. 

In  case  XIII.  Lord  Abinger  said:  "  Those  cases  where 
it  has  been  held  that  promissory  notes  signed  by  the  bank- 
rupt are  not  evidence  sufficient  to  support  the  commission 
unless  proved  to  have  been  in  existence  before  the  bank- 
ruptcy, stand  on  a  peculiar  foundation  of  their  own,  which 
distinguishes  them  from  the  present.  In  those  cases  it  was 
the  interest  of  the  petitioning  creditor  to  support  the  com- 


92  PRESUilPTIVE   EVIDENCE.  [eULE    18. 

mission,  and  owing  to  the  jealousy  which  the  law  feels  of 
a  collision  between  him  and  the  bankrupt,  the  practice  has 
been  established  when  no  other  evidence  of  a  petitioning 
creditor's  debt  is  offered  than  a  paper  in  the  handwriting  of 
the  bankrupt,  to  require  proof  of  the  existence  of  that  docu- 
ment previous  to  the  act  of  bankruptcy.  But  it  has  never 
3'et  been  held,  or  even  contended,  that  where  a  paper  is 
adduced  in  evidence  against  a  bankrupt  or  his  assignee,  the 
document  itself  is  not  pritna  facie  evidence  that  it  was  made 
at  the  time  it  bears  date ;  and  I  never  yet  knew  an  instance 
where  the  defendant  was  called  upon  to  prove  the  actual 
date." 

"  Generally  speaking,"  said  Best,  C.  J.,  in  case  XIV.,  "a 
date  is  presumed  to  be  correct.  But  where  the  letters  of 
the  wife  are  given  in  evidence  in  favor  of  the  husband, 
you  must  prove  when  they  where  sent,  because  after  a 
reconciliation,  husband  and  wife  might  contrive  letters.' 

B. 

I.  It  is  necessary  to  prove  that  G.  was  in  Baltimore  on  tlie  9th  of  No- 
vember, 1829.  A  promissory  note  dated  Baltimore,  November  9,  18J9, 
and  signed  by  G.,  is  produced.  This  does  not  raise  a  presumption  that 
G.  was  in  Baltimore  on  that  day.i 

1  Given  v.  Albert,  5  W.  &  S.  333  (18i3). 


CHAPTER    Y. 

THE  PRESmiPTION  OF  INNOCENCE  IN  CmL  CASES. 

RULE  19. — A  person  who  is  shown  to  have  done  any 
act  is  presumed  to  have  done  it  innocently  and  hon- 
estly (A),  and  not  fraudulently  ^K),  illegally -(C),  or 
wickedly.^ 

Ultistrations. 


I.  A  man  and  woman  live  and  cohabit  together.  The  presumption  is 
that  they  are  married.* 

II.  Marriages  between  white  people  and  negroes  are  prohibited  under 
a  penalty.  A  negro  and  a  white  woman  live  together.  The  presump- 
tion is  that  they  are  not  married.' 

III.  A  husband  and  wife  separate;  the  former  goes  and  lives  and 
cohabits  with  another  woman.  The  presumption  is  that  he  has  obtained 
a  divorce.* 

IV.  A.  marries  B.  having  a  husband,  C,  living.  C.  subsequently  dies. 
A.  and  B.  continue  to  cohabit.  The  presumption  is  that  they  have  been 
married  after  C.'s  death.'' 

1  Thus,  a  partr  alleging  fraud  must  prove  it.  Gutzweiler  r.  Lackman,  39>ro.  91 
(1S66) ;  Dlaisdell  i:  Cowell,  U  Me.  370  (1837) ;  Inluibiiants  of  New  Portland  v.  Inhab- 
itants of  Kingsfleld.  55  Me.  172  (1807) ;  Ueeves  v.  Dougherty,  7  Yerg,  222  (isa4) ; 
raxton  V.  Boyce,  1  Tex.  317  (1846) ;  Ex  parte  Knowles,  2  Crunch  C.  C.  576  (1825) ; 
Cooper  V.  Galbraith,  3  Wash.  C.  C.  546  (1819) ;  Hagar  v.  Thomson,  1  Black.  80 
(1861) ;  Greenwood  v.  Lowe,  7  La.  Ann.  197  (1852) ;  Hewlett  v.  Hewlett,  4  Edw.  Ch.  8 
(1837) ;  Watkyna  v.  "Watkyns,  2  Atk.  97  (1740). 

2  Cummings  v.  Stone,  13  Mich.  70  (1864) ;  Gassett  v.  Godfrey,  26  N.  H.  415  (1853) ; 
Farmer.-.',  etc.,  Bk.  v.  Detroit,  etc.,  R.  Co.,  17  Wis.  372  (1863) ;  Howard  v.  Boorman, 
17  Wis.  459  (1863). 

3  Kenton  County  Ct.  v.  Bank  Lick  Turnpike  Co.,  10  Bush,  529  (1874) ;  Long  r. 
State,  46  Ind.  582  (1874);  Chapman  r.  Mclhvrath,  77  Mo.  44  (1882);  Cross  r.  Brown,  41 
N.  H.'289  (l^GD) ;  Kichards  r.  Kountze,  i  Neb.  209  (1676) ;  Gay  v.  Bidwcll,  7  Mich.  510 
(1859) ;  Habersham  v.  Hopkins,  4  Strobh.  (S.  C.)  239  (1850) ;  Russell  v.  Baptist  Theo- 
logical Union,  73  111.  337  (1874). 

*  I'ost  V.  Post,  70  HI.  481  (1873) ;  Cope  t-.  Pearcc,  7  Gill,  263  (1848). 

5  Armstrong  f.  Hodges,  2  B.  Mon.70  (1841). 

«  Blanchard  v.  Lambert,  43  Iowa,  223  (1876). 

^  Blanchard  v.  Lambert,  43  Iowa,  223  (1876) ;  Yates  v.  Houston,  3  Tex.  433  (18^18) ; 
Carroll  v.  Carroll,  20  Tox.  731  (1858) ;  Fcnton  y.  Ueed,  4  Johns.  51;  Rose  r.  Clark,  3 
Page,573;Jacksou  V.Clark,  18  Johus.  347.  /  n-x  \ 

{V6  ) 


94  PRESUMPTIVE   EVIDENCE.  [rULE    19. 

Y.  A.  being  under  the  legal  age,  contracts  a  marriage  T\'itli  B.;the 
marriage  is  void.  When  A.  comes  of  age,  B.  is  ou  her  deatli-bed  and 
dies  three  weeks  thereafter;  during  that  time  they  continue  to  live 
together  and  to  be  recognized  as  husband  and  wife.  A  marriage  will 
be  presumed  to  have  taken  place  after  A.  came  of  age.^ 

VI.  To  sustain  a  plea  of  coverture,  a  defendant  swore  that  she  was 
married  at  a  certain  chapel  on  a  certain  da}',  and  afterwards  cohabited 
with  her  husband ;  the  law  required  that  to  render  a  marriage  valid,  the 
chapel  in  which  it  was  solemnized,  should  be  licensed.  Held,  that  the 
presumption  was  that  the  chapel  in  this  case  was  duly  licensed. ^ 

VII.  In  an  action  by  A.  against  B.,  A.  alleged  that  B.,  who  had  char- 
tered his  ship,  had  put  on  board  a  dangerous  commodity  by  which  a  loss 
happened,  without  due  notice  to  the  captain,  or  any  other  person  employed 
in  the  navigation;  the  burden  of  proving  that  B.  did  not  give  the  notice 
was  on  A.* 

VIII.  A  railroad  company  is  authorized  to  construct  a  railroad  in  a 
public  street,  with  necessary  switches  and  turn-outs;  it  makes  certain 
switches  which  it  is  alleged  are  a  nuisance.  The  presumption  is  that 
they  are  necessary,  and  the  burden  is  ou  the  one  complaining  of  the 
nuisance.* 

IX.  A  physician  is  employed  to  treat  A.'s  wife  and  children.  In  a  suit 
for  his  services,  it  wiU  be  presumed  that  the  visits,  for  which  he  charges, 
were  necessary.* 

X.  A  statute  requires  that  the  taking  of  the  sacrament  should  be  a 
prerequisite  to  holding  a  certain  office.  The  presumption  is  that  a  per- 
son holding  such  office  is  qualified  in  this  manner.*^ 

XI.  An  insolvent  exhibits  an  account  of  his  debits  and  credits  under 
oath.  The  presumption  is  that  it  is  a  true  account,  and  not  that  be  has 
committed  perjury.' 

XII.  The  action  is  for  the  malicious  prosecution  of  the  plaintifE  with- 
out probable  cause.  The  burden  of  proving  the  absence  of  probable 
cause  is  on  the  plaintiff. » 

XIII.  A  statute  provides  that  no  justice  of  the  peace  shall  hear  any 
examination  in  any  bar-room  where  spirituous  liquors  are  sold.  A 
justice  holds  an  examination  in  a  bar-room.  It  will  not  be  presumed 
that  spirituous  liquors  were  sold  there.' 

1  Wilkinson  v.  Payne,  4  T.  R.  468  (1791). 

2  Sicliel  V.  Lambert,  15  C.  B.  (N.  s.)  781  (18fi4). 

3  AVilliamsi;.  East  InaiaCo.,3  East,  104(1802). 
<  Carson  v.  Central  U.  Co.,  35  Gal.  325  (1868). 

6  Todd  V.  Myers,  40  Cal.  355  (1S70). 

6  Kmgv.  Hawkins,  10  East,  211,  (1809). 

'  Hewlett?;.  Hewlett,  4  Edw.  (X.  Y.)  7  (1839). 

8  Lavender  r.  Ilortgens,  32  Ark.  704  (1878). 

*  Savier  v.  Cbipmau,  1  Mich.  116  (184s). 


rXLE    19.]  INNOCENCE   IN   CIVIL   CASES.  95 

XIV.  Botli  parties  to  a  suit  tcstifj'  to  matters  within  the  kno'.vlecljre 
of  both.  Material  evidence  of  one  is  not  contradicted  by  the  other.  It 
is  presumed  to  be  true.i 

XV.  The  question  is  whether  A.  was  divorced  from  B.,  A.  having  sub- 
sequently married  C.  A.  testilles  to  a  divorce  proceeding,  but  the  record 
having  been  destroyed,  there  is  no  evidence  that  the  decree  was  ever 
recorded.    The  presumption  is  that  it  was.'^ 

In  case  I.,  if  the  inference  should  be  that  they  were  not 
married,  there  must  be  an  inference  that  they  were  living 
in  unlawful  relations.  "  The  mere  cohabitation  of  two 
persons  of  different  sexes,  or  their  behavior  in  other 
respects  as  husband  and  wife,  always  aflbrds  an  inference 
of  greater  or  less  strength  that  a  marriage  has  been 
solemnized  between  them.  Their  conduct  being  susceptible 
of  two  opposite  explanations,  we  are  bound  to  assume 
it  to  bo  moral  rather  than  immoral." 

In  case  II.,  the  presumption  is  that  the  parties  were  not 
married,  because  if  they  were,  they  were  guiltj"-  of  violating 
the  express  words  of  a  penal  statute. 

*'  We  have  here,"  said  Keating,  J.,  in  case  11.,  "  the  fact 
of  a  religious  ceremony  having  been  performed  by  a  minis- 
ter of  religion,  in  a  place  of  public  worship.  All  that  is 
required  to  make  the  marriage  a  strictly  valid  marriage  is 
that  the  place  where  the  ceremony  was  performed  was  duly 
licensed  under  the  statute  for  the  celebration  of  marriages, 
and  that  the  registrar  was  present.  The  question  is  whether 
we  may  presume  the  existence  of  these  two  requisites.  I 
think  we  may,  consistently  with  all  the  doctrines  of  legal 
presumptions,  fairly  presume  that  the  ceremony  was  prop- 
erly and  legally  performed,  seeing  that  if  it  were  otherwise 
the  officiating  clergyman  wouldhave  been  guilty  of  felony." 

It  was  argued  in  case  ■\t:I.  that  to  compel  A.  to  prove  the 
want  of  notice  was  compelling  him  to   prove  a  ne<T:ative 


1  Matthews  r.  Lanier,  33  Ark.  91  (1878).  A.  swears  that  on  a  certain  day  he 
deposited  some  money  with  n.  R.  swears  that  he  did  not.  The  veracityof  ncitliL-r 
id  impeached.  The  prcMimptiou  of  truth  is  in  favor  of  A.  Hepburn  v.  Citizens 
Bank,  2  La.  Ann.  5Co  (1S47). 

■  Re  Edwards,  68  Iowa,  431  (18^2). 


96  PEESUaiPTIVE   EVIDENCE.  [rULE    19. 

■which  in  a  civil  action  at  least  was  against  the  general  rules 
of  evidence.  But  Lord  Ellenborough  said:  "That  the 
declaration  in  imputing  to  the  defendants  the  having 
■wrongfully  put  on  board  a  ship  without  notice  to  those  con- 
cerned in  the  management  of  the  ship,  an  article  of  a  highly 
dangerous,  combustible  nature,  imputes  to  the  defendants  a 
criminal  negligence,  can  not  "well  be  questioned.  In  order 
to  make  the  putting  on  board  -wrongful  the  defendants  must 
be  cognizant  of  the  dangerous  quality  of  the  article  put  on 
board,  and  if  being  so,. they  yet  gave  no  notice  considering 
the  probable  danger  thereby  occasioned  to  the  lives  of  those 
onboard,  it  amounts  to  a  species  of  delinquency  in  the  per- 
sons concerned  in  so  putting  such  dangerous  article  on 
board  for  -which  they  are  criminally  liable  and  punishable 
as  for  a  misdemeanor  at  least.  We  are,  therefore,  of 
opinion,  upon  principle  and  the  authorities,  that  the  burden 
of  proving  that  the  dangerous  article  in  question  "was  put 
on  board  without  notice  rested  upon  the  plaintiff's  alleging 
it  to  have  been  "wrongfully  put  on  board  without  notice  of 
its  nature  and  quality." 

In  case  XV.  it  "was  said:  "  The  next  question  is,  has  it 
been  established  that  deceased  and  appellant  were  divorced 
in  1873.  In  considering  this  question  we  shall  regard  the 
case  as  triable  anew  in  this  court.  The  appellant  testifies 
she  never  was  served  with  notice  of  any  such  an  action  and 
that  she  had  no  knowledge  of  any  such  proceeding.  What 
purports  to  be  a  copy  of  the  bar  docket  for  the  April  term, 
1873,  was  introduced  in  evidence,  and  it  fails  to  show  there 
was  such  a  cause  pending  at  that  term.  One  of  the  books 
being  a  record  of  the  proceedings  of  the  court,  was  not 
destroyed.  No  decree  of  divorce  can  be  found  therein. 
The  first  record,  or  entry,  in  this  book  was  made  in  18G9, 
and  the  last  in  1876,  so  that  it  covers  the  period  when  the 
divorce  is  claimed  to  have  been  obtained.  Two  decrees  of 
divorce,  between  other  parties, are  set  out  at  length  in  said 
book,  as  having  been  procured  at  the  April  term,  1873.  The 
entries  in  the  book  are  not  in  reirular  order.     Judgments  or 


iiuLE  10.]  I:;^'OCE^'CE  in  civil  cases. 


97 


decrees  rendered,  for  instance,  in  1872,  precede  a  judgment 
which  was  rendered  in  1870.  There  was  another  record 
book  which  was  destroyed  by  the  fire.  There  was  evidence 
tending  to  show  the  clerk  made  entries  in  both  of  these 
books  during  the  period  of  the  trial  of  the  action  for 
divorce.  The  evidence  fails  to  show  that  any  person  ever 
saw  the  alleged  decree  or  record  thereof.  On  the  other 
hand  there  is  evidence  which  can  not  be  ignored,  that  a  peti- 
tion was  filed  and  that  a  decree  of  divorce  was  ordered  by 
the  court,  and  a  sufficient  memorandum  made  by  the  judge  in 
his  calendar  to  enable  a  decree  to  be  drafted,  or  the  clerk  to 
make  the  appropriate  entry  of  record  that  a  divorce  had  been 
granted.  It  was  the  duty  of  the  clerk,  under  the  direction 
of  the  judge,  to  have  made  a  record  of  all  the  judgments  and 
decrees  of  the  court  which  were  made  at  the  April  term, 
1873.  It  must  be  presumed,  both  the  clerk  and  the  judge 
did  their  duty.  The  appellant  repeatedl}^  and  to  divers 
persons,  after  the  divorce  is  claimed  to  have  been  obtained, 
admitted  such  to  be  the  fact,  and  afterwards  she  married 
one  Baker  and  cohabited  with  him  as  his  wife  in  the  same 
bouse  at  which  the  deceased  boarded.  It  is  insisted  the 
admission  of  the  appellant  that  there  was  a  divorce  should 
not  be  considered,  because  whether  there  was  a  divorce  or 
not  can  only  be  shown  by  the  record.  Whether  a  decree  of 
divorce  was  ever  entered  of  record  by  the  clerk  we  are 
not  entirely  satisfied.  But  that  such  a  decree  was  ordered 
by  the  court  and  directed  to  be  entered  of  record,  wc  can 
not  doubt.  This  being  so,  we  think  the  admissions  and 
acts,  and  conduct  of  the  appellant,  should  be  considered  in 
aid  of  the  presumption  that  a  decree  of  divorce  was  in  fact 
entered  of  record.  That  there  was  a  divorce  must  be  con- 
ceded, or  the  other  result  follows  that  the  appellant  was 
guilty  of  bigamy  when  she  married  Baker,  and  that  the 
deceased  so  knew.  In  the  absence  of  clear  and  satisfactory 
evidence  to  the  contrary  the  presumption  should  be 
indul"-ed  that  a  divorce  had  been  obtained,  and  the  defend- 
ant  lawfully  contracted  the  marriage  with  Baker.  The 
7 


93  PRESUJirrm:  evidence.  [rule  19. 

presumption  of  innocence  rather  than  guilt  should  be 
indulged.  The  evidence  is  quite  persuasive,  if  not  entirely 
satisfactory,  that  there  was  a  divorce.  When  to  this  then 
is  added  the  presumption  of  innocence,  and  the  acts  and 
declarations  of  the  appellant,  we  think  the  preponderance 
of  the  evidence  is  that  the  appellant  and  the  deceased  were 
duly  and  legally  divorced." 

B. 

I.  In  an  action  at  law  the  plaintiff  reads  to  the  jury  a  statement  in  the 
handwriting  of  the  defendant.  The  presumption  is  that  he  obtained  it 
fairly.^ 

II.  A  person  makes  a  deed  of  land.  The  presumption  is  that  he  was 
seized  of  the  land  at  the  time.^ 

III.  R.  gives  to  L.  an  order  on  J.,  his  debtor,  for  a  sum  less  than  the 
debt;  he  also  gives  to  F.  an  order  on  J.  for  the  whole  sum  due  from  J. 
to  L.  F.'s  order  being  lost,  the  question  is  which  was  given  first.  The 
presumption  is  that  the  order  in  favor  of  L.  was.^ 

IV.  A.  seeks  to  rescind  a  sale  of  land  made  by  B.  to  him,  on  the  ground 
that  B.  had  used  fraudulent  representations  in  making  the  sale.  The 
burden  is  on  A.  to  prove  this,  as  the  presumption  is  in  B.'s  favor.* 

V.  It  was  contended  that  a  sale  was  fraudulent.  The  court  instructed 
the  jury  that  "  it  was  necessary  that  the  defendant  should  adduce  stronger 
proof  to  establish  fraud  than  to  prove  a  debt  or  sale ;  that  the  presump- 
tion was  that  every  man  acted  honestly  and  without  fraud,  and  when 
fraud  was  alleged  the  proof  must  not  only  be  sufficient  to  establish  an 
innocent  act,  but  to  overcome  the  presumption  of  honesty."  Heldy 
proper.* 

VI.  An  action  is  by  B.  for  deceitfully  exchanging  property,  upon 
which  A.,  one  of  the  parties,  had  an  adverse  claim  at  the  time  of  the 
exchange.    The  burden  is  not  on  B.  to  show  that  he  had  no  notice.® 

VII.  To  remove  the  bar  of  the  Statute  of  Limitations  from  a  claim 
against  a  testator's  estate  the  plaintiff  proves  a  receipt  of  part  payment, 

1  Hazen  v.  Henry,  6  Ark.  86  (1845).  "The  possession  of  the  account  by  defendant 
raises  the  presumption  not  only  that  it  was  rendered,  but  tliat  it  came  properly  into 
his  hands."    Nichols  v.  Alsop,  10  Conn.  263  (1834). 

2  Bolster  r.  Cushman,34  Me.  428  (1852). 

3  James  River,  etc.,  Co.  v.  Littlejohn,  18  Gratt.  53  (18G7) ;  Littlejohn  v.  Ferguson,  Id. 
*  Oaks  V.  Harrison,  24  Iowa,  IT'J  (1807) ;  Burton  v.   Mason,  26  Iowa,  392  (1868) ; 

Leigh  ton  v.  Oit,  44  Iowa,  680  (1876). 

i  H.atch  V.  Bayley,  12  Cush.  (Mass.)  27  (1853). 

«  Patee  v.  Pclton,  48  Vt.  183  (1876) ;  and  see  Ilibbard  i-.  Mill,  46  Vt.  243  (1S73). 


RULE    19.]  INNOCENX'E    IN    CIVIL   CASES.  99 

signed  by  him,  which  was  found  in  the  testator's  room.  The  mere  fact 
that  the  plaintiff  was  seen  in  that  room  alone  would  not  justify  the  iufer- 
euce  that  he  fraudulently  placed  his  receipt  among  the  testator's  papers. ^ 

VIII.  A  mortj^cage  is  alleged  fraudulent.  The  bui-den  of  showing  this 
to  be  so  is  on  the  complainant.'' 

IX.  A  law  allows  an  administrator  commissions  on  the  money  in  his 
hands  except  where  he  fails  to  make  annual  reports  to  the  ordinary.  In 
proceedings  in  which  it  was  charged  that  an  administrator  was  not  enti- 
tled to  money  which  he  claimed  as  commissions,  the  burden  of  showing 
that  he  did  not  make  the  required  returns  is  on  the  complainant;  the 
presumption  is  that  he  did  his  duty.^ 

In  case  III.  it  was  said :  "In  the  absence  of  any  evidence 
on  the  subject  the  presumption  must  be  that  L.'s  order  was 
given  first.  For  it  would  have  been  an  act  of  folly  as  well  as  a 
fraud  in  R.  to  give  L.  an  order  for  the  amount  of  his  debt 
when  he  had  already  given  F.  an  order  for  the  whole  bal- 
ance due  him  from  the  company.  The  court  will  not  pre- 
sume this,  in  the  absence  of  all  evidence,  but  will  presume 
the  contrary," 

In  case  IV.  it  was  said  :  "  To  say  the  least  it  is  left  much 
in  doubt  whether  defendant  ever  made  the  representations 
charged.  The  presumption  is  that  the  transaction  was  fair 
and  honest,  and,  as  plaintiff  affirms  the  contrary,  it  is  his 
duty  to  sustain  his  allegations  by  sufficient  proof,  by  such 
evidence  as  will  satisfy  the  conscience  of  the  chancellor. 
When,  upon  all  the  facts,  the  case  is  left  in  equipoise,  the 
party  affirming  must  fail." 

"  It  is  certainly  true,"  said  Mr.  Justice  Storj^  delivering 
the  judgment  of  the  Supreme  Court  in  another  case,*  "  that 
length  of  time  is  no  bar  to  a  trust  clearly  established,  and 
in  a  case  where  fraud  is  imputed  and  proved,  length  of  time 
ought  not,  upon  principles  of  eternal  justice,  to  be  admitted 
to  repel  relief.  On  the  contrary  it  would  seem  that  the 
len<]jth  of  time  durinir  which  the  fraud  has  been  success- 


1  Carroll  r.  Quynn,  13  Md.  379  (185S). 

»  Price  t'.  Govcr,  40  Mil.  102  (1S74). 

«  Gee  V.  Ilicks.Ilich.  (S.  C.)  Eq.  Cas.  5  (1831). 

*  Prevost  V.  Gralz.  6  Wheat.  (U.  S.)  481  (1821) ;  1  Pet.  C.  C.  3G4  (1S16). 


100  PKESmiPTIVE    EVIDENCE.  [rULE    19. 

fully  couceuled  and  practiced  is  rather  an  aggravation  of 
the  olleuse  and  calls  more  loudly  upon  a  court  of  equity  to 
grant  ample  and  decisive  relief.  But  length  of  time  neces- 
saril}'  obscures  all  human  evidence,  and  as  it  thus  removes 
from  the  parties  all  the  immediate  means  to  verify  the  value 
of  the  original  transactions,  it  operates,  by  way  of  pre- 
sumption, in  favor  of  innocence  and  against  imputation  of 
fraud.  It  would  be  unreasonable  after  a  great  length  of 
time  to  require  exact  proof  of  all  the  minute  circumstances 
of  any  transaction,  or  to  expect  a  satisfactory  explanation 
of  every  difficulty,  real  or  apparent,  with  which  it  may  be 
encumbered.  The  most  that  can  fairly  be  expected  in  such 
cases,  if  the  parties  are  living,  from  the  frailty  of  memory 
and  human  infirmity,  is  that  the  material  facts  can  be  given 
with  certainty  to  a  common  intent,  and  if  the  parties  are 
dead  and  the  cases  rest  in  confidence  and  in  parol  agree- 
ments, the  most  that  we  can  hope  is  to  arrive  at  probable 
conjectures  and  to  substitute  general  presumptions  of  law 
for  exact  knowledge.  Fraud  or  breach  of  trust  ought  not 
lightly  to  be  imputed  to  the  living,  for  the  legal  presump- 
tion is  the  other  way,  and  as  to  the  dead  who  are  not  here 
to  answer  for  themselves  it  would  be  the  height  of  injust- 
ice and  cruelty  to  disturb  their  ashes  and  violate  the  sanc- 
tity of  the  grave  unless  the  evidence  of  fraud  be  clear 
be3'ond  a  reasonable  doubt." 

But  fraud  may  be  inferred  from  circumstances.  In 
Morfordv.  PecA;,Hhe  court  say:  "The  last  point  which 
we  propose  to  discuss  is  contained  in  the  first  proposition 
of  the  charge  to  the  jury,  who  were  told  that  the  plaintiffs 
must  prove  the  fraud,  and  that  it  could  not  be  inferred. 
The  court  probably  intended  by  this  merely  to  convey  to 
the  jury  the  idea  embodied  in  the  maxim  so  often  quoted, 
that  'the  law  never  presumes  fraud.'  The  maxim  itself 
is  liable  to  mislead  a  jury,  and  requires  explanation  to  tiie 
effect  that   the  law    in  its   charitable  estimate  of   human 

1  40  Conn.  334  (1S78.) 


RULE    19.]  IXNOCEXCE   IX   CIVIL    CASES.  101 

nature,  never  supposes  a  person  guilty  of  a  thing  so  base 
until  it  is  proved;  but  it  must  never  be  taken  to  mean  that 
the  law  will  not  imply  fraud  from  facts  and  circumstances 
where  it  is  not  directly  proved,  or  will  not  in  some  cases 
even  find  constructive  fraud  where  no  actual  fraud  is 
proved.  The  above  maxim  embodies  a  principle  similar 
to  that  which  obtains  in  criminal  cases,  that  the  law  pre- 
sumes every  one  innocent  until  i)roved  guilty  ;  but  it  would 
hardly  do  to  say  that  guilt  can  never  be  inferred,  for  in 
most  criminal  cases,  especially  of  a  felonious  character,  the 
conclusion  of  guilt  must  be  arrived  at,  if  at  all,  by  the  aid 
of  indirect  evidence,  by  inference  from  other  facts  and  cir- 
cumstances. We  think  the  judge  made  the  maxim  more  mis- 
leading by  substituting  "inferred  "  f or  "  presumed."  The 
former  is  a  stronger  word  than  the  latter  (in  connection 
with  the  words  "  can  not"),  for  the  purpose  of  excluding 
indirect  evidence.  To  infer  is  derived  from  the  Latin  inferre^ 
compounded  of  "  ^?^,"  from,  and  "  ferre''  to  carry  or  bring, 
and  its  strict  meaning  is  to  bring  a  result  or  conclusion 
from  something  back  of  it,  that  is,  from  some  evidence  or 
c?a^a  from  which  it  may  be  legally  deduced.  But  'to  presume' 
is  from  the  Latin  ^rocswmere,  consisting  of  "  proc,''  before 
and  *■'■  sumere^''''  to  take,  and  signifies  to  take  or  assume 
a  matter  beforehand,  without  proof  —  to  take  for  granted. 
We  do  not  suppose  jurors  would  weigh  these  words  in  the 
light  of  such  a  verbal  criticism,  but  we  know  of  no  better 
way  to  illustrate  the  substantial  difference  in  the  impression 
which  these  two  words  are  calculated  to  make  on  the 
common  mind.  ^  We  think  this  first  proposition,  standing 
by  itself,  was  calculated  to  mislead  the  jury." 

C. 

I.  It  is  alleged  that  certain  goods  were  sold  contrary  to  law.  The  bur- 
den of  proving  that  the  sale  was  in  violation  of  law  is  on  the  party 
alleging  it.i 

1  Trottr.  Irieh,  1  Allen,  481  (ISf.l) ;  Ilewes  v.  Platts,  12  Gray,  143  (1S53) ;  Stebbius 
V.  Leowolf,  1  Cush.  137  (1819) ;  Kidder  v.  Xon-is,  13  N.  U.  53-2  (1847). 


102  PEESIDITTIVE   EA^IDEXCE.  [rULE    19. 

II.  A  statute  allows  ten  per  cent  interest  to  be  reserved  only  in  the 
case  of  money  loaned.  A  contract  provides  for  the  payment  of  ten  per 
cent  interest  without  showing  the  consideration.  The  presumption  is 
that  it  was  money  loaned.^ 

III.  The  question  is  whether  A.  has  committed  a  certain  act.  The 
doing  of  the  act  renders  A.  liable  to  a  penalty.  That  A.  has  done  an  act 
involving  a  penalty  will  not  be  presumed.* 

IV.  A.  sues  B.  for  his  services  as  B.'s  bar-keeper.  There  is  no  proof 
whether  B.  is  a  legal  seller  of  liquor,  i.e.,  has  a  license.  The  presump- 
tion is  that  he  has.* 

V.  A.  is  sued  for  destroying  certain  dwelling  houses.  In  mitigation 
of  damages  he  offers  to  prove  that  the  houses  were  houses  of  ill-fame 
and  could  not  have  been  rented  for  any  other  purpose  —  honest  people 
would  not  live  in  them.  The  evidence  is  inadmissible ;  for  the  law  can 
not  presume  that  future  tenants  will  violate  the  law.* 

So  it  is  a  general  rule  that  negligence  will  not  be 
presumed  without  some  evidence  showing  a  state  of 
affairs  from  which  negligence  can  properly  be  inferred.^ 
Thus  it  is  shown  simply  that  a  vessel  took  fire.  Here  no 
presumption  arises  that  the  fire  was  the  result  of  any  neg- 
ligence.® So  seaworthiness  in  a  vessel  is  presumed.^  But 
if  she  is  lost  without  stress  of  weather  or  without  sustain- 
ing damages  from  danger  of  the  seas,  unseaworthiness  is 
presumed.^  In  like  manner  the  happening  of  a  catastrophe 
which  might  have  been  prevented  raises  a  presumption  of 
negligence.  A  boiler  for  example  explodes.  The  presump- 
tion is  that  it  v/as  negligently  made  or  used.^     Or  a  blast 

1  Sutphen  v.  Cushman,  35  111.  187  (1864). 

2  Sidney  v.  Sidney,  3  P.  Wms.  270  (1734) ;  Clark  v.  Periam,  3  P.  Wms.  334  (1741) ; 
Scholes  V.  Hilton,  10  M.  &  W.  15  (1842). 

3  Timson  v.  Moulton,  3  Cush.  269  (1849). 
<  Johnson  v.  Farwell,  7  Me.  370  (1831). 

s  Linsday  v.  Connecticut,  etc.,  R.  Co.,  27  Vt.  643  (1854). 

«  The  Buckeye.  7  Biss.  23  (1863). 

'  Martin  r.  Fishing  Ins.  Co.,  20  Pick.  389;  .32  Am.  Dec.  220;  Lunti;.  Boston  Marine 
Ins.  Co.,  6  Fed.  Kep.  508;  Werk  v.  Leathers,  1  Woods,  272. 

8  Snethen  v.  Memphis  Ins.  Co.,  3  La.  Ann.  474;  48  Am.  Dec.  462  (1848) ;  Patrick  v. 
Hallett,  1  Johns.  246;  Talcotv.  Commercial  Ins.  Co.,  2  Johns.  129;  Miller  v.  Ins.  Co., 
2  McCord.  (S.C.)  330;  13  Am.  Dec.  734  (1823) ;  Dupeyre  v.  Western  Ins.  Co.,  2  Rob. 
(La.)  4.J7;  38  Am.  Dec.  405  (1848)  ;Prescott  v.  Union  Ins.  Co.,1  Whart.  (Pa.)  399;  30  Am. 
Dec.  206  (1830).  That  a  carrier  received  goods  in  good  order  is  presumed.  Breed  v. 
Mitchell,  48  Ga.  533  (187.3). 

»  Illinois  Cent.  E.  Co.  v.  Phillips,  49  111.  234;  Illinois  Cent.  R.  Co.  v.  Houck,  72  111. 
285  (1S74). 


BULE    19.]  INNOCENCE   IN   CIVIL   CASES.  103 

explosion  injures  a  horse.  The  presumption  is  that  it  (the 
blast)  was  not  properly  covered.^  Or  an  animal  is  killed 
by  a  railroad  locomotive  on  the  track.  The  presumption  is 
that  it  was  negligently  killed.""'  As  said  by  the  Supreme 
Court  of  Georgia:  "We  incline  to  think  that  the  mere 
fact  that  the  company's  train  killed  the  cows  was  sufficient 
to  raise  the  presumption  that  the  killing  was  the  result  of 
negligence  in  the  company's  servants.  When  one  man  kills 
another  the  law  implies  malice  in  the  killer  ;  so  if  one  man 
kills  another's  cattle  ought  there  not,  in  like  manner,  to  be 
an  implication  of  malice  or  negligence  in  the  latter.^ 


1  Ulrich  V.  BIcCabe,  1  Hilt.  2.51  (185G). 

«  Little  Rock,  etc.,  R.  Co.  v.  Fiuley,  37  Ark.  5G2  (ISSl) ;  Little  Rock,  etc.,  R.  Co., 
V.  Henson,  33  Ark.  415  (18S2). 

'  Georgia  R.  Co.  v.  Willis,  28  Ga.  317  (1859) ;  Georgia  R.  Co.  v.  Monroe,  49  Ga.  373 
(1873). 


CHAPTER    YI. 

THE  PRESUMPTIONS  OF  MARRIAGE  AND  LEGITIMACY. 

RULE  20.  — Marriage  (A)  or  filiation  (parentage)  (B)  may 
be  presumed. 

A. 

In  Cargile  v.  Woocl,^  it  is  said:  "Where  parties  have 
cohabited  together  and  held  themselves  out  as  man  and 
wife,  and  there  are  circumstances  from  which  a  present  con- 
tract may  be  inferred,  the  law,  out  of  charity  and  in  favor 
of  innocence  and  good  morals,  will  presume  matrimony. 
The  law  in  general  presumes  against  vice  and  immorality, 
and  on  this  ground  holds  acknowledgment,  cohabitation, 
and  reputation  presumptive  evidence  of  marriage.  Mere 
cohabitation  is  not  usually  considered  sufficient.  Bishop 
lays  down  the  doctrine  that  *  cohabitation  and  the  reputa- 
tion of  being  husband  and  wife  are  usually  considered 
together  in  questions  concerning  the  proof  of  marriage,  the 
one  beino;  in  a  certain  sense  the  shadow  of  the  other.  Some 
of  the  authorities  favor  the  idea  that  reputation  of  itself 
may  be  received  as  sufficient  \)vooi  prima  facie ^  but  it  must 
be  uniform  and  general;  and  if  there  is  a  conflict  in  the 
repute,  it  will  not  establish  the  marriage.  On  the  other 
hand,  its  sufficiency  in  any  case  has  been  denied,  unless 
there  be  accompanying  proof  of  cohabitation.'  ^  Cohab- 
itation and  reputation  are  at  best  only  presumptive  proofs, 
and  when  one  of  these  foundations  is  withdrawn,  what 
remains  is  too  weak  to  build  a  presumption  on.     There  is 


1  63  Mo.  56,  (1876),  and  see  Johnson  v.  Johnson,  1  Dessau.  595  (1797). 
*  1  Bish.  Mar.  and  Div.  (5th  ed.),  sec.  438. 

(104) 


RULK    20.]  MAKRIAGE   AND    LEGITIjIACV.  105 

good  sense  in  tlie  Scotch  laWjbj'  which  cohabitation  alone  is 
consiilored  insufBcient,  and  Avhich  requires  in  addition  habit 
and  repute,  because  it  is  said  tlie  parties  may  eat,  live,  and 
sleep  together  as  mistress  and  keeper  without  any  intention 
of  entering  into  marriage.  Cohabitation  is  simply  the  first 
step,  and  when  that  is  accompanied  by  an  acknowledgment 
of  the  matrimonial  relations,  and  treating  each  other  as  a 
man  and  wife  and  holding  one  another  out  to  the  world  as 
such,  there  may  reasonably  be  a  jiresumption  founded  upon 
all  these  facts  that  the  intercourse  is  lawful  instead  of  mere- 
tricious. These  things  all  go  to  form  the  circumstances 
upon  which  reputation  is  grounded.  Reputation  consists 
of  the  belief  and  the  speech  of  the  people  who  have  an 
opportunity  to  know  the  parties,  and  have  heard  and 
observed  their  manner  of  living.  But  cohabitation  may  be 
notoriously  illicit,  and  known  to  be  so  in  the  neighborhood 
in  Avhich  the  parties  reside.  In  such  a  case  the  law  would 
surely  not  presume  that  it  furnished  any  presumption  or 
evidence  of  marriage.  The  reputation  of  the  parties  and 
mode  of  life,  founded  on  facts,  would  repel  it,  and  a  pre- 
sumption in  their  favor  would  assert  what  is  well  known  to 
be  a  falsehood.  Therefore,  cohabitation  and  reputation 
must  both  exist  before  the  presumption  can  be  raised.  If 
parties  cohabit  together  as  man  and  wife,  treat  each  other  as 
such,  and  acknowledge  the  existence  of  that  relation,  and 
thereby  acquire  the  reputation  of  being  married  among 
the  people,  the  fact  of  marriage  may  well  be  presumed. 
But  if  the  facts  show  the  contrary,  and  the  reputation  is  that 
they  are  not  married,  no  such  presumption  can  be  indulged. 
The  court  therefore  declared  the  law  correctly,  when  it 
required  reputation  as  well  as. cohabitation." 

B. 

Filiation  or  parentage  may  at  law  be  established,  and  can 
only  in  general  be  so  established,  as  regards  the  father,  by 


1C6  PKESmiPTIVE   EVIDEXCE.  [llULE    20. 

a  coml)in.ition  of  fucts  indicating  the  connection  of  parent 
and  child  between  an  individual  and  the  family  to  which  he 
claims  to  belong.  Among  the  principal  of  these  facts  are 
that  his  mother  was  married  to  the  person  whom  he  claims 
as  his  father  at  the  time  he  was  born  or  begotten  ;  that  he 
has  always  borne  his  name  and  been  treated  and  maintained 
and  educated  as  his  child ;  that  he  has  been  uniformly 
received  as  such  in  society,  and  that  he  has  been  acknowl- 
edged as  such  by  the  family.  These  things  being  shown  his 
legitimacy  is  presumed.^ 

Sub-Rule  1.  —  Tlie  law  presumes  the  validity  of  a  mar- 
riage ceremony^ {A),  and  that  every  person  is  legitimate 
(B). 

Illustrations 

A. 

I.  Parties  appear  at  a  church  aud  the  minister  publicly  and  in  the 
presence  of  others  performs  a  ceremony  of  marriage  between  them, 
aud  they  afterwards  regard  themselves  as  marx'ied.  The  presumption  is 
that  the  ceremony  was  legal  and  regular,  though  there  is  no  proof  of  the 
particulars  of  the  ceremony  or  that  it  was  according  to  the  forms  and 
usages  of  the  church.^ 

II.  On  a  question  of  legitimacy,  a  sentence  of  nullity  of  a  marriage 
on  account  of  the  refusal  of  the  woman's  father  to  consent  is  produced. 
There  is  a  statement  in  a  parish  register  that  a  marriage  took  place 
with  the  consent  of  her  mother;  but  saying  nothing  about  the  father. 

1  Weatherford  v.  Weatherford,  20  Ala.  548  (1852) ;  Illinois  Loan  Co.  v.  Bonner,  75 
111.  315  (18C4) ;  Barnum  v,  Barnum,  42  ]\Id.  253  (1875).  In  Blackburn  v.  Crawford,  3 
Wall.  175  (18U5) ,  the  court  insti-ucted  the  jury  that  If  a  man  and  woman  live  together 
as  husband  and  wife,  and  the  man  acknowledges  the  woman  as  his  wife,  and  always 
treats  her  as  such,  and  acknowledges  and  treats  the  children  which  she  bears  to 
him  as  his  children,  and  permits  them  to  be  called  by  his  name,  there  is  a  pro- 
sumption  of  law  that  they  are  legitimate.  On  appeal  this  was  held  incorrect. 
"  Under  such  circumstances,"  said  Mr.  Justice  Swayne,  "  the  law  makes  no  presump- 
tion. The  question  to  be  determined  was  one  of  fact  and  not  of  law.  The  facts 
referred  to  were  a  part  of  the  evidence.  They  were  to  be  weighed  against  the 
countervailing  evidence.  They  might  by  possibility  all  bo  true,  aud  yet  no  marriage 
have  occurred,  and  the  children  all  be  illegitimate." 

2  Ilarrod  v.  Ilarrod,  1  K.  &  J.  4  (1854) ;  Fleming  v.  Fleming,  4  Bing.  2G6  (1827) ; 
Sichel  V.  Lambert,  15  C.  B.  (N.  s.)  782  (1804). 

3  People  V.  Calder,  30  Mich.  85  (1874) ;  Fleming  v.  People,  27  N.  Y.  329,  and  see 
State  V.  Kean,  10  N.  H.  347  (1839). 


KULE    21.]  MARRIAGE   AND    LEGITIMACY.  107 

The  presumption   in   connection  with  other  circumstances,  is  that  the 
marriage  was  legal. ^ 

In  case  II.  it  was  said:  "  I  think  tliat  having  regard  to 
the  general  rule  which  applies  to  all  cases  of  presumption, 
ovinia  rite  acta  prmsunuuitur,  and  to  the  particular  force  of 
the  rule  as  applied  to  cases  of  presumption  in  favor  of 
marriage  and  legitimacy,  and  against  the  commission  of  any 
crime  or  offense  ;  and  having  regard  also  to  the  cases  which 
were  cited  in  the  argument,  we  are  bound  in  this  case  to 
presume  that  the  father  was  consenting  to  the  marriage, 
and  that  it  was  therefore  valid.  The  circumstance  of  the 
marriage  being  expressed  on  the  face  of  the  register  to  be 
with  the  consent  of  the  mother,  was  relied  on  against  the 
l)resumption,  but  I  think  it  more  than  probable  that  the 
mother's  consent  was  entered  upon  the  register  in  conse- 
quence of  her  having  been  present  at  the  marriage,  and  at 
all  events  the  fact  of  her  consent  having  been  given  would 
not,  I  think,  be  sufficient  to  countervail  the  presumption 
that  the  father  was  consenting  also." 

B. 

I.  A.,  claiming  as  the  heir  of  B.,  seeks  to  recover  from  C.  property  of 
B.  It  is  proved  that  A.  is  B.'s  cliild.  The  burden  is  on  C.  to  show  that 
he  is  not  the  legitimate  child  of  B. 

The  law  presumes  that  every  child  in  a  Christian  country 
is  jprima  facie  the  offspring  of  a  lawful  rather  than  of  a 
meretricious  union  of  the  parents,  and  that  consequently 
the  mother,  either  by  actual  marriage,  or  by  cohabitation 
and  recognition,  was  the  lawful  wife  of  the  father,  and  in 
the  absence  of  any  negative  evidence,  no  supplemental  proof 
of  legal  marriage  will  be  necessary  to  legitimize  the  off- 
spring.^ 

1  Harrison  v.  Mayor,  4  DeG.  M.  &  G.  153  (1S53). 

»  Strode  v.  Magowan,  2  Uush,  C27  (1SC5).  And  where  a  man  epeaks  of  a  cliild  of 
his  aa  his  "  daughter,"  the  presumption  is  that  she  is  legitimate.  Gaines  v.  New 
Orleans,  6  Wall.  6'JO  (IS6T).    And  see  Gaines  v.  Herman,  '2-1  How.  553  (1S60). 


108  PEESmiPTIVE    EVIDEXCE.  [rULE    21. 

RULE  21.  — A  person  proved  to  have  been  born  during^ 
the  continuance  of  a  valid  marriage  between  his 
mother  and  any  man,  or  within  such  time  after  the 
dissohition  thereof  and  before  the  celebration  of 
another  valid  marriage,  that  his  mother's  husband 
could,  according  to  the  course  of  nature,  have  been 
his  father,  is  presumed  to  be  the  legitimate  child  of 
his  mother's  husband.^ 

Illustration. 

I.  A  woman  was  divorced  from  her  husband  July  11, 18G5.  On  Jilarch 
7,  1866,  she  gave  birth  to  a  child.  The  presumption  is  that  the  former 
husband  was  the  father.* 

lu  accordance  with  the  maxim  'pater  est  quern  nupticB 
demonstrat  the  rule  is  the  same  where  the  child  is  born  in 
wedlock,  whether  begotten  before  or  after  the  marriage;  ^ 
and  where  the  mother  is  visibly  pregnant  at  the  time  of  the 
marriage  the  presumption  is  held  not  to  be  rebuttable,  for 
it  is  said  that  a  man  who  marries  a  woman  whom  he  knows 
to  be  in  that  condition  is  to  be  considered  as  acknowledgino; 
by  a  most  solemn  act  that  the  child  is  his.*  As  has  been 
said:  *'  This  legal  presumption  that  he  is  the  father  whom 
the  nuptials  show  to  be  so,  is  the  foundation  of  every  man's 
birth  and  status.     It  is  a  plain  and  sensible  maxim  which  is 


1  Steph.  Ev.,  art.  98;  Stegall  v.  Stegall,  2  Brock.  256  (1825) ;  Illinois  Loan  Co.  v. 
Bonner,  75  111.  315  (1874) ;  Herring  v.  Goodson,  43  Miss.  392  (1870) ;  Remington  v. 
Lewis,  8  B.  Mon.  611  (1848) ;  State  v.  AVorthingham,  23  Minn.  528  (1877) ;  Bowles 
V.  Bingham,  3  Munf.  599  (1811) ;  Patterson  v.  Gaines,  6  How.  550  (1848) ;  Caugolle  v. 
Ferric,  23  N.  Y.  90  (1861) ;  Senser  v.  Bower,  1  Penn.  450  (1830) ;  Diukius  v.  Samuels, 
10  Rich.  (L.)  70  (1850). 

2  Drennan  v.  Douglass,  102  111.  345  (1882).  And  see  State  v.  Romaine,  58  Iowa,  46 
(1882).  That  the  child  was  born  eight  months  after  the  marriage  does  not  overcome 
the  presumption.    Phillips  v.  Allen,  2  Allen,  453  (18G1) . 

3  Dcnnison  v.  Page,  29  Pa.  St.  420  (1857).  See  dissenting  of  opinion  of  Lowrie, 
J.,  in  Page  v.  Dcnnison,  1  Grant's  Cas.  379  (1859) ;  R.  v.  Luff,  8  East.  198;  State  v. 
Herman,  13  Ired.  (L.)  502  (18.52);  State  v.  Wilson,  10  Ired.  (L.)  131;  Montgomerj' r. 
Montgomery,  3  Barb.  Ch.  132  (1848) ;  Bowles  v.  Bingham,  2  Munf.  412  (ISSl)  ;  3  Munf., 
appendix.  In  Montgomery  v.  Montgomery,  3  Barb.  Ch.  132  (1S48),  it  was  held  that  the 
admission  of  a  lliird  party  that  a  child  born  after  the  marri;igc,  but  begotten  before, 
was  his  child  and  not  that  of  the  subsequent  husband  was  not  sulllcient  to  rebut  the 
presumption. 

*  R.  V.  Luff,  8  East,  198;  State  v.  Herman,  13  Ircd.  (L.)  503  (1852). 


RULE    21.]  MAUniAGE   AND    LEGITIMACY.  109 

the  corner  stone,  the  very  foundation  on  which  rests  the 
wliole  fabric  of  human  society;  and  if  you  allow  it  once 
to  be  shaken,  there  is  no  saying  what  consequence  may  fol- 
low."^ By  the  ancient  common  law,  if  the  husband  was 
within  the  four  seas  at  any  time  during  the  pregnancy  of 
the  wife,  the  presumption  was  conclusive  that  her  children 
were  legitimate.^  This  conclusive  presumption  of  legiti- 
macy was  upheld,  it  has  been  intimated,  from  motives  of 
policy  to  protect  the  fruits  of  the  profligacy  of  kings  and 
nobles  from  the  peril  of  disinheritance.  So  far  was  the 
principle  carried  that  in  one  case  it  was  decided  tliat  a  child 
born  in  England  was  legitimate,  although  the  proof  was 
uncontradicted  that  the  husband  resided  in  Ireland  during 
the  whole  time  of  the  wife's  pregnancy  and  for  a  long  time 
l.>revious;  while  in  another,  where  the  husband  resided  in 
Cadiz,  the  child  was  held  to  be  a  bastard,  not  because  Cadiz 
was  further  away  from  the  residence  of  the  wife,  but  because 
Ireland  was  within  the  "  four  seas,"  while  Cadiz  was  with- 
out them.  Nevertheless,  the  English  judges,  during  many 
rcin-ns,  adhered  to  the  rule  in  all  its  strictness  and  refused  — 
except  in  the  case  of  a  natural  impossibility  —  to  make  any 
inquiries  into  the  paternity  of  a  child  whose  mother's  hus- 
band was  within  the  realm.'  But  this  rule  at  length,  "  on 
account  of  its  absolute  nonsense,"  as  Mr.  Justice  Gross 
termed  it,  was  exploded.      In  1807.  in  the  case  of  King 


1  Routlege  v.  Camithers,  Nicholas  Adult.  Bast.  Ifil. 
s  R.  V.  Murray,  1  Salk.  122;  II.  v.  Allerton,  1  Ld.  Kay.  122. 

3  In  Fletteshain  v.  Julian,  Year  Book,  7  Ilcn.  IV.  9,  decided  in  the  seventh  year 
of  the  reign  of  Henry  IV.,  Kickhill,  J.,  said:  "  Cestui  John  fuit  deins  la  mere  1'i.ssuc 
fuit  niulicr— for -who  that  bulleth  my  cow  the  calf  is  mine."  The  judicial  language 
of  that  d.ay  was  apt  to  be  broad,  but  the  judge  was  to  furnish  the  great  dramatist 
with  law  for  one  of  his  tragedies:  — 

"  Sirrah,  your  brother  is  legitimate, 
Your  father's  wife  did  after  wedlock  bear  him; 
And  if  slie  did  play  false  the  fault  was  hers. 
Which  fault  lies  on  the  hazards  of  all  husbands 
That  marry  wives.    Toll  mo,  how  if  my  brother 
Who,  as  you  say,  took  pains  to  get  this  son 
Had  of  your  father  claimed  this  sou  for  his? 
In  sooth,  good  friend,  your  father  might  have  kept 
This  calf,  bred  from  his  cow,  from  all  the  world." 

King  John,  Act  I.,  Scene  I. 


110  PRESUMPTIVE   EVIDENCE .  [rULE    21. 

V.  Liiffe,^  Lord  EUenborough  laid  it  down  that  the  illegiti- 
macy of  the  child  might  be  shown  where  the  Icgitimac}'"  was 
impossible,  in  the  five  cases  :  (1. )  Where  the  impossibility 
arose  from  the  husband  being  under  the  age  of  puberty.  In  a 
case  in  the  Year  Books  it  was  held  that  the  issue  was  a  bas- 
tard where  the  husband  was  under  fourteen  years  of  age  at 
the  time.  (2. )  Where  the  impossibility  arose  from  the  hus- 
band laboring  under  a  disability  occasioned  by  natural 
infirmity.  In  FoxcrafC s  C ase"^  an  infirm  bedridden  man 
was  married  in  that  state  twelve  weeks  before  his  wife  bore 
a  child.  The  child  was  adjudged  illegitimate.  (3.)  Where 
the  impossibility  arose  from  the  length  of  time  elapsed  since 
the  death  of  the  husband.  (4.)  Where  the  impossibility 
arose  from  the  absence  of  the  husband — as  where  he  was 
outside  the  realm  at  the  time  the  child  was  begotten.'  (5.) 
Where  the  impossibility  was  based  on  the  laws  of  nature. 
An  example  of  this  division  is  found  in  Whisterlo's  case,* 
where  it  was  attempted  to  charge  a  black  man  as  the  father 
of  a  white  child  borne  of  a  mulatto  woman.  But  in  an 
Illinois  case,  where  a  person's  mother  was  an  Indian,  his 
father  being  white,  proof  that  he  was  a  colored  man  was 
held  not  to  ov^ercome  the  presumption  of  legitimacy,  for  the 
color  would  be  inferred  as  being  derived  from  the  mother.^ 
Finally,  in  Pendrell  v.  Pendrell,^  it  was  held  that  it  was  not 
necessary  to  show  that  the  legitimacy  was  impossible.  In 
this  case  the  husband  and  wife,  after  living  together  some 
months,  separated,  she  sta3ang  in  London  and  he  going  to 
Staffordshire.  After  a  separation  of  three  years  a  child 
was  born.  The  evidence  being  strong  that  the  husband  had 
not  visited  the  wife  during  that  time,  the  presumption  of 
the  legitimacy  of  the  child  was  held  to  be  overthrown,  and 
he  was  declared  illegitimate.^ 

1  8  East,  207. 

s  1  Roll.  Abr. 

8  See  R.  V.  Allerton,  1  Ld.  Ray.  396. 

*  Cited  in  Cross  v.  Cross,  3  Paige  Ch.  139. 

t  Illinois  Loan  Co.  v.  Bonner,  75  III.  315  (1874). 

«  2  Strange,  925. 

^  And  see  Goodright  v.  Saul,  4  Term  Rep.  358. 


RULE    21.]  MARRIAGE   AND    LEGITIMACY.  Ill 

In  Ilarrirave  v.  Ilargravc,^  Lord  LangcLilc  laid  it  dovrn 
that  the  presumption  thtit  a  chihl  born  of  a  married  woman 
16  legitimate  may  be  rebutted  by  showing  tliat  the  husband 
was;  (1)  Incompetent ;  (2)  entirely  absent,  so  as  to  have  no 
intercourse  or  communication  of  any  kind  with  the  mother  ; 
(3)  entirely  absent  at  the  period  during  which  the  child  must 
in  the  course  of  nature  have  been  begotten ;  (  4  )  only  present 
under  circumstances  affording  clear  and  satisfactory  proof 
that  there  was  no  sexual  intercourse.  And  in  answer  to 
the  House  of  Lords  the  judges  laid  down  the  rule  thus  : 
Where  a  child  is  born  in  lawful  wedlock,  the  husband  not 
being  separated  from  his  wife  by  a  sentence  of  divorce, 
sexual  intercourse  is  presumed  to  have  taken  place  between 
the  husband  and  wife,  until  the  i)resumption  is  encountered 
by  such  evidence  as  proves  to  the  satisfaction  of  those  who 
are  to  decide  the  question  that  such  sexual  intercourse  did 
not  take  place  at  any  time  when  by  such  intercourse  the 
husband  could,  according  to  the  laws  of  nature,  be  the 
father  of  the  child. ^ 

In  Head  v.  IJead,^  Leach,  V.  C,  summed  up  the  modern 
English  law  in  concise  language.  Said  he  :  "  The  ancient 
policy  of  the  law  of  England  remains  unaltered.  A  child 
born  of  a  married  W0man  is  to  be  presumed  to  be  the 
child  of  the  husband,  unless  there  is  evidence  which  ex- 
cludes all  doubt  that  the  husband  could  not  be  the  father. 
But  in  modern  times  the  rule  of  evidence  has  varied. 
Formerly  it  was  considered  that  all  doubt  could  not  be 
excluded  unless  the  husband  were  extra  quatiior  maria. 
But  as  it  is  obvious  that  all  doubt  may  be  excluded  from 
other  circumstances,  although  the  husband  be  within  the 
four  seas,  the  modern  practice  permits  the  introduction 
of  every  species  of  legal  evidence  tending  to  the  same 
conclusion.     But  still  the  evidence  must  be  of  a  character 


'  9Beav.  255  (1S4G). 

*  Answer  of  the  judges  to  the  seventh  quoetioa  in  the  Banbury  Peerage,  1  Sim. 
&Stu.  157  (ISll). 

»  1  Sim.  &  Stu.  150  (JS23). 


112  PEESOirTIVE   EYIDEXCE.  [rULE    21. 

to  exclude  all  doubt ;  and  when  the  judges  in  the  Banhury 
Case  spoke  of  satisfactory  evidence  upon  this  subject  they 
must  be  understood  to  have  meant  such  evidence  as  would 
be  satisfactor}'-,  having  regard  to  the  special  nature  of  the 
subject."  This  is  the  law  of  both  England  and  the  United 
States  at  the  present  time. 

In  answer  to  another  question  in  the  Banbury  Case,  the 
judges  replied:  "  That  after  proof  given  of  access  of  the 
husband  and  wife  by  which,  according  to  the  laws  of 
nature,  he  might  be  the  father  of  a  child,  no  evidence 
can  be  received  except  to  deny  that  such  intercourse  had 
taken  place."  ^  In  this  rule  it  should  be  remembered  that 
"  access"  and  "non-access"  mean  the  existence  or  non- 
existence of  opportunities  for  sexual  intercourse.^ 

"If  sexual  intercourse  is  ^jroved,"  said  the  chancellor 
in  Morris  v.  Davis,^  "that  is,  if  the  judge  or  the  jury 
trying  the  question  of  fact  be  satisfied  that  sexual  inter- 
course took  place  between  the  husband  and  wife  at  the 
time  of  the  child  being  conceived,  the  law  will  not  permit 
an  inquiry  whether  the  husband  or  some  other  man  was 
more  likely  to  be  the  father  of  the  child."  If  once  you 
are  satisfied  that  the  husband  had  sexual  intercourse  with 
his  wife,  the  presumption  of  legitimacy  is  not  to  be  rebutted 
by  its  being  shown  that  other  men  also  had  sexual  inter- 
course with  the  woman.  The  law  will  not,  under  such 
circumstances,  allow  a  balance  of  the  evidence  as  to  who 


1  Answer  of  the  judges  to  the  sixth  question  in  the  Banbury  Peerage,  1  Sim.  & 
Stu.  157  (ISll) ;  Wright  v.  Holdgate,  3  C.  &  K.  158  (1850). 

2  Banbury  Peerage,  1  Sim.  &  Stu.  159  (1811).  Said  Lord  Eldon  in  the  Banbury 
Peerage  (see  5  01.  &  F.  250) :  "Lord  Uale,  in  Hospell  v.  Collins,  decided  that  the 
issue  for  the  jury  was  as  to  the  fact  of  access,  or,  as  I  understand  him  to  mean, 
sexual  intercourse.  For  the  access  iu  question  is  of  a  peculiar  nature,  not  being 
access  in  the  ordinary  acceptation  of  the  word,  but  access  between  a  husband  and 
wife  viewed  with  reference  to  the  result,  namely,  the  procreation  of  children." 
"By  'access'  I  mean  o))portunities  of  having  sexual  intercourse."  Aldcrson,  B., 
in  Cope  v.  Cope,  1  M.  &  Rob.  275  (1833),  "Access  is  such  access  as  affords  an  oppor- 
tunity ol  sexual  intercourse."  Bury  v.  Philpot,  2  Myl.  &  K.  ."19  (1835).  Lord  Lang- 
dale  in  one  case  calls  it  "generating  access,"  saying:  "The  absence  of  sexual 
intercourse  where  there  has  been  some  society,  intercourse  or  access,  has  been 
called  'non-generating  access.'  "    Hargrave  v.  Hargruvc,  9  Beav.  225  (1846). 

3  5  CI.  &F.  243  (1837). 


RULE    21.]  MARRIAGE   AND   LEGITIMACY.  113 

is  most  likely  to  have  been  tlic  father.^  The  hiw  docs  not 
permit  the  admission  of  evidence  on  the  question  whether 
the  adulterer  or  the  husband  is  most  likely  to  be  the  father 
of  the  child. ^  So,  -where  the  husband  has  had  intercourse 
or  even  "access,"  the  bad  rei)utation  of  the  wife,  either 
before  or  after  the  marriage,  does  not  overthrow  the  pre- 
sumption.' Neither  is  the  fact  that  tlie  wife  was  living  in 
adultery.*  In  R.  v.  Inhabitanls  of  Mansfield,^  it  appeared 
that  a  wife  was  deserted  by  her  husband,  who  went  to  live 
with  another  woman;  that  the  wife  at  the  end  of  three  or 
four  years  married  another  man  and  had  two  children  ; 
that  eleven  years  after  the  second  marriage  she  again 
cohabited  with  her  husband.  It  not  appearing  where  the 
husband  was  between  the  time  of  his  deserting  and  returning 
to  his  wife,  it  was  held  that  the  evidence  was  insufficient  to 
show  non-access  when  the  children  were  begotten.  **  The 
qnestion  is,"  said  Lord  Denman,  "whether  in  this  case 
there  be  any  evidence  of  illegitimacy,  and  to  establish  that 
it  is  necessary  to  show  non-access  of  the  husband.  That 
may  be  proved  by  circumstances,  one  of  which  certainly  is 
an  adulterous  intercourse  between  the  husband  or  wife  and 
another  party.  But  here  the  whole  proof  consists  only 
of  that  fact.  We  are  not  told  what  the  husband  was  doing 
or  where  residins:  at  the  time  the  children  were  begotten." 
In  Bernj  v.  Phil  pot, ^  the  wife  of  P.  left  him  and  went  to 
live  with  her  father.  Shortly  after,  her  father  dying,  she 
formed  a  connection  with  one  H.,  with  whom  she  went  to 
live.  P.  took  a  house  opposite  where  they  resided  and 
had  frequent  interviews  with  her.  She  had  two  children 
during  this  time.  It  Avas  held  that  they  must  be  declared 
legitimate.     "Access,"  said  the  master,  "  if  it  is  such  access 


1  Aldcrson,  B.,  in  Cope  v.  Cope,  1  I^I.  &  Rob.  275  (1833). 

2  nemmeiiway  v.  Tosnicr,  1  Allen,  '209  (1861). 
s  Phillips  JJ.  Allen,  2  Allen,  l.iS  (1S61). 

4  Cases  ante,  and  Cross  v.  Cross,  3  Paige  Ch.  139;  23  Am.  Dec.  778  (1S32). 

'  IQ.  n..J44  (IMH). 

«  2  Myl.  &  K.  341)  (1834). 


Hi  PREStrXlTTIVE   EVIDENCE.  [RULE    21. 

as  affords  an  opportunity  of  sexual  intercourse,  and  where 
the  fact  of  such  access  between  a  husband  and  wife  within 
a  period  capable  of  raising  the  legal  inference  as  to  the 
legitimacy  of  an  after  born  child  is  not  disputed,  proba- 
bilities can  have  no  weight,  and  a  case  ought  never  to  be 
sent  to  a  jury.  There  is  nothing  against  the  evidence  of 
access  except  evidence  of  the  adulterous  intercourse  of  the 
wife  with  H.,  which  docs  not  affect  the  legal  inference; 
for  if  it  were  proved  that  she  slept  every  night  with  her 
paramour  from  the  period  of  her  separation  from  her  hus- 
band, I  must  still  declare  the  children  to  be  legitimate. 
The  interest  of  the  public  depends  upon  a  strict  adherence 
to  the  rule  of  law."  In  Van  Aerna^n  v.  VaiiAernara,^  the 
wife  of  the  plaintiff  was  for  several  years  living  in  the 
same  town  with  him  as  the  kept  mistress  of  another  person, 
the  husband  making  no  exertions  to  break  up  the  inter- 
course. The  court  held  that  in  the  absence  of  evidence 
of  non-access  the  husband  would  be  presumed  to  bo  the 
father  of  the  children  begotten  upon  the  wife  during  that 
time. 

From  proof  of  ♦*  access  "  — as  this  word  is  used  in  this 
connection  —  the  presumption  of  sexual  intercourse  is  very 
strong.  Ploives  v.  Berry ^^  affords  a  good  illustration  of 
this.  In  that  case  B.,  who  was  married  in  1829  became  a 
lunatic  in  1833  and  was  confined  in  a  lunatic  asylum  until 
his  death.  His  wife  who  lived  twenty-five  miles  away,  occa- 
sionally visited  her  husband,  but  the  keepers  of  the  asylum 
had  strict  orders  not  to  allow  them  at  any  time  to  remain 
alone  together.  He  was  allowed  the  freedom  of  the  grounds, 
and  the  porter  sometimes  being  absent  it  was  possible  for  a 
person  to  enter  without  being  seen.  In  March,  1835,  she 
visited  the  asylum,  remaining  alone  for  some  time  with  her 
husband.  A  child  was  born  in  Deceml)er,  1835.  There 
were  rumors  at  the  time  that  Mrs.  B.  was  living  in  adultery 

1  IBarb.  Ch.  375  (J84fi). 
«  31  L.  J.  (Ch.)  630  (1802). 


RULE   21.]  MxVRlIIxVGE   AND   LKUITIMACV.  115 

with  one  D.  But  the  court  held  that  the  ehild  was  legiti- 
mate.^ 

Evidence  of  rumor  that  a  person  was  illegitimate  is  itself 
insufficient;^  though  such  testimony  is  admissible  in  con- 
nection with  other  facts.^  In  Kingy .  Lufe^*^  it  was  held  that 
non-access  of  the  husband  need  not  bo  proved  during  the 
whole  period  of  the  wife's  pregnancy — it  was  sufficient 
if  it  was  naturally  impossible  (as  where  he  had  access 
only  a  fortnight  before  the  birth)  that  he  could  be  the 
father. 

That  husband  and  wife  slept  together  affords  a  strong  and 
irresistible  inference  of  sexual  intercourse.^  "  But  in  the 
absence  of  such  irresistible  evidence,  the  fact  of  sexual 
intercourse  must  bo  tried  like  every  other  fact  to  which  no 
direct  evidence  is  applicable.  Proof  that  the  husband  and 
wife  were  living  in  the  same  town,  and  so  had  opportunities 
of  meeting,  and,  therefore,  of  sexual  intercourse,  would  in 
the  absence  of  any  proof  raising  a  presumption  to  the  con- 
trary be  sufficient  to  establish  the  legitimacy  of  a  child  born 
of  the  wife."  Proof  that  they  had  been  in  the  same  room 
or  in  the  same  house  together  would  be  much  stronger  evi- 
dence of  the  fact,  the  strength  of  which,  however,  would 
vary  with  the  circumstances ;  and  as  neither  would  be 
direct  proof  of  sexual  intercourse,  but  of  facts  from  which, 
taken  by  themselves,  sexual  intercourse  would  be  inferred, 
such  inference  must,  as  in  all  other  cases,  be  capable  of 
being  repelled  by  the  proof  of  facts  tending  to  raise  a  con- 
trary inference." 

But  proof  of  access  is  not  conclusive.^  It  being  only 
proved   that   the  opportunity  for   sexual  intercourse    had 


1  See  the  corrected  report  of  the  case  in  33  L.  J.  (Ch.)  347;  and  see  contra  Clarke 
V.  Mavuard,lMadd.&  Gold.  304  (lS-:2). 

»  Vauyhn  v.  rdiodes,  2  McCord,  227  ;  73  Am.  Dec.  713  (1S22) 
3  Stegall  V.  blegall,  ante. 

*  8  East. 

5  Lcgge  V.  Edmonds,  2.')  I..  J.  (Ch.)  125  (1S5G). 

*  Morris  v.  Davis,  supra.  • 

'  R.  V.  Inhabitants  of  MansHeld,  1  Q.  B.  444  (ISU) ;  Cope  v.  Cope,  1  M.  &  Kob.'275 
(1S33) ;  II.  V.  Shepherd,  6  Liuuey,  283  (18^1). 


lin  PRESUMrTIVE   EYIDEXCE.  [rULE    21. 

existed  —  as  that  the  parties  lived  in  the  same  house  —  and 
the  fact  itself  not  being  proved,  evidence  is  admissible  to 
disprove  the  presumption  that  it  did  take  place.  "  The 
parties  may  be  followed  with  these  four  walls,  and  the  fact 
of  sexual  intercourse  not  onl^^  disproved  b}^  direct  testimony, 
but  by  circumstantial  evidence  raising  a  strong  presumption 
against  the  fact,"  To  state  this  principle  briefly  —  the 
proof  of  sexual  intercourse  being  conclusive,  the  presump- 
tion can  not  be  attacked,  but  the  evidence  by  which  such 
fact  is  to  be  established  may  be  contradicted.  The  law  is 
not  so  unreasonable  as  to  demand  proof  of  non-access  by 
witnesses,  who  were  with  her  every  minute  of  the  time 
whenever  she  is  supposed  to  have  been  begotten  with  a 
child.  If  such  facts  and  circumstances  are  proved,  as 
would  induce  a  rational  and  well  founded  belief  that  the 
husband  could  have  no  access,  it  is  sufficient.^ 

On  this  question  the  conduct  of  the  supposed  father  or 
of  the  mother  towards  the  child  is  relevant.^  In  the  case 
of  Morris  v.  Davies,^  the  wife  concealed  the  birth  of  the 
child  from  her  husband,  and  declared  to  him  that  she  never 
had  such  a  child  ;  the  husband  disclaimed  all  knowledge  of 
it,  and  acted  up  to  his  death  as  if  no  such  child  was  in 
existence;  the  wife's  paramour  aided  in  concealing  the 
child,  reared  and  educated  it  as  his  own,  and  left  it  all  his 
property  by  will.  This  repelled  the  presumption  that  the 
child  was  legitimate. 

In  t\iQ  Banhurij  Peerage  Case,  Lord  Redesdale  said:  "I 
admit  that  tlie  law  presumes  the  child  of  the  wife  of  A., 
born  when  A.  mis^ht  have  had-  sexual  intercourse  with  her, 
or  in  due  time  after,  to  be  the  legitimate  child  of  A. ;  but 
this  was  merely  considered  a  ground  of  presumption,  and 
might  be  met  by  opposing  circumstances.  The  fact,  indeed, 
that  any  child  is  the  child  of  any  man  is  not  capable  of 


1  Com.  V.  Wentz,  1  Ashm.  2C9  (1S08) ;  Wright  v.  Hicks,  12  Ga.  155  (1332) ;  State  v. 
Pettaway,  3  Hawks,  623  (1825). 

•^  Cope  V.  Cope,  1  M.  &  Kob.  275  (1833). 
3  5C1.&F.  163(1836). 


KULE    21.]  MAKUIAGE    AND    LEGITIMACY.  117 

direct  proof,  and  can  only  be  the  result  of  presumption, 
understanding  by  presumption  a  probable  consecjuence 
drawn  from  facts,  either  certain  or  jn-oved  by  credible  tes- 
timony, by  which  may  be  determined  the  proof  of  a  fact 
alleged,  but  of  which  there  can  be  no  direct  i)roof.  *  •  * 
It  is,  therefore,  of  high  importance  to  consider  in  a  question 
of  legitimacy  whether  the  fact  of  such  acknowledgment  as 
would  demonstrate  the  legitimacy  did  take  place;  or 
whether  by  circumstances  such  acknowledgment  was  ren- 
dered impossible,  as  by  the  child  being  a  posthumous  child. 
If,  on  the  contrary,  it  appears  that  the  supposed  father  was 
ignorant  of  the  birth  of  such  a  child,  and  that  the  fact  of 
its  birth  was  concealed  from  him,  such  concealment  is 
strong  presumptive  proof  that  there  had  existed  no  sexual 
intercourse  which  could  have  made  him  the  father  of  such 
a  child." 

So,  the  fact  of  the  wife  living  in  open  adultery,  coupled 
with  the  facts  that  the  husband  had  only  on  one  single  occa- 
sion an  opportunity  for  access,  and  that  the  wife  concealed 
the  birth  of  the  child  from  her  husband,  were  held  sufficient 
to  rebut  the  presumption  of  intercourse.^  And  the  illegiti- 
macy of  a  child  of  a  married  woman  is  established  beyond 
dispute  when  it  is  shown  that  she  was  living  in  adultery  at 
the  time  it  was  begotten,  and  that  her  husband  was  residing 
in  a  part  of  the  country  Avliich  made  access  impossible.^ 

The  presumption  still  holds  where  the  parties  are  living 
apart  from  each  other  by  mutual  consent;  ^  but  it  is  other- 
wise where  they  are  separated  by  a  decree  of  the  court,  for 
in  such  case  the  presumption  is  that  they  obey  the  decree.* 
But  the  presumption,  in  the  first  case,  is  of  course  rebutta- 
ble by  proof  of  non-access. 


1  Cope  V.  Cope,  1  M.  &  Rob.  275  (1333).    The  report  of  this  case  in  5  C.  &  P.  GOl, 
Is  incorrect  and  misleading.    Sec  1  Q.  15.  -150,  Lord  Denman,  C.  J. 

-  The  ISarony  of  Sale.  1  H.  L.  Gas.  507  (1S18) ;  and  see  Guruey  v.  Gurney,  32  L.  J. 
(Ch.)  456  (1862). 

3  St.  George  t-.  St.  Margarets,  1  Salk.  123;  Sidney  r.  Sidney,  3  P.  Wms.  275  (1S34) ; 
Morris  V.  Davies,  5  CI.  &  F.  103  (1S57) ;  Ilcmmiuway  v.  Towner,  1  Allen,  209  (lb61). 
Id. 


118  PKESUMPTIVE  EVIDENCE.        [rULE  21. 

Noithor  the  declarations  of  the  wife,  nor  her  testimony 
that  the  child  was  the  child  of  a  man  other  than  her  hus- 
band, are  admissible;^  nor  of  the  wife  that  the  husband 
had  not  access  or  opportunities  for  access ;  ^  nor  of  the 
husband  that  he  was  not  the  father  of  the  child,'  or  had  not 
access  or  opportunities  for  access.'*  And  this  rule  is  not 
altered  by  the  modern  legislation  permitting  parties  to 
"  testify  in  their  own  behalf."  ^  But  where  non-access  has 
been  established,  the  declaration  of  the  wife  is  admissible 
to  prove  the  paternity  of  the  child. ^  And  on  an  indictment 
for  bastardy  or  fornication,  the  wife  is  a  competent  witness 
to  prove  the  connection.^  But,  although  it  is  no  longer 
necessary  that  the  legitimacy  of  the  child  must  be 
shown  to  be  impossible,  nevertheless,  the  presumption 
can  only  be  rebutted  by  proof  beyond  a  reasonable 
doubt  that  the  husband  could  not  have  been  the  father.^ 
The  onus  lies  on  the  person  alleging  that  the  child  of  a 
married  woman  is  illegitimate  to  prove  it.  There  is  no  onus 
on  the  party  whose  legitimacy  is  in  question  to  show  oppor- 
tunities of  access,  or  what  the  circumstances  were  under 
which  the  access  took  place. ^ 

In  a  Louisiana  case  ^^  it  was  held  that  the  legitimacy  of  a 
child  born  in  wedlock  can  not  be  contested  by  either  the 
mother,  her  heirs,  or  the  child  himself.     The  right  in  such 


1  Stegall  V.  Stegall,  2  Brock.  257  (1S25) ;  Pendrell  v.  Pendrcll,  2  Strange,  025  (1700) ; 
Cope  V.  Cope,  1  M.  &  Rob.  276  (1833; ;  Atchley  v.  Sprigg,  33  L.  J.  (Ch.)  345  (ISGl)  ; 
Stevens  v.  Moss,  2  Cowp.  59i;  Uenuison  v.  Page,  29  Pa.  St.  420  (1856) ;  Com,  v.  Sliep- 
herd,  6  Binney,  233. 

2Com.  t).  Shepherd,  6  Binney,  283  (1814). 

3  Id. ;  Hemminway  v.  Towner,  1  Allen,  209  (1861). 

*  Wriglit  V.  lloldgate,  3  Cook,  158  (1850) ;  King  v.  Inhabitants  of  Somton,  5  Ad.  & 
Ell.  180  (1836). 

'■>  Boykin  v.  Boykin,  70  N.  C,  263  (1374) . 

0  Legge  V.  Edwards,  25  L.  J.  Ch.  125  (1855). 

'  Com.  V.  Weulz,  1  Ashm.  269  (1808);  Slate  r.  Peltaway,  3  Hawks,  673  (1825); 
Com.  r.  Strieker,  1  Browne,  i:LVlII.  (1801);  Whitman  v.  State,  34  lud.  312  (1870); 
Com.  V.  Shepherd,  6  Binney,  213  (1841). 

8  Phillips  V.  Allen,  2  Allen,  453  (1801) ;  PIowcs  v  Bossey,  31  L.  J.  (Ch.)  6S0  (1S62) ; 
Atchley  r.  Sprigg,  33  L.  J.  (Ch.)  345  (1864) ;  Van  Aernam  v.  Van  A'irnam,  1  Barb.  Ch. 
375  (1S4G);  Sullivan  r.  Kelly,  8  Allen,  118  (1861). 

«  Plowes  V.  BoRsey,  13  L.  J.  (Ch.)  680  (1862). 
1"  Eloi  V.  Mader,  1  Rob.  581 ;  38  Am.  Dec.  192  (1841). 


RULE    21.]  MARRIAGE   AND    LEGITIMACY.  119 

a  contest  abides  only  with  tlie  putative  father.  Said 
Murphy,  J. :  *'  The  declarations  of  the  plaintiff  himself 
cannot  affect  his  condition,  and  are  not  to  bo  listened  to. 
It  would  be  contra  bonos  mores  to  allow  him  to  repudiate  his 
own  legitimacy.  Having  been  born  in  marriage,  he  can  not 
be  permitted  by  any  admission  to  bastardize  him- 
self. *  *  *  The  right  to  disavow  and  repudiate  a  child 
born  under  the  protection  of  the  legal  presumption  2)ater 
est,  etc.,  is  peculiar  to  the  father,  and  can  be  exercised  only 
by  him  or  his  heirs,  within  a  given  time  and  in  certain  cases. 
If  the  father  renounces  the  right,  expressly  or  tacitly,  it  is 
extinguished  and  can  never  more  be  exercised  by  any  one. 
The  mother  has  no  right  to  disavow  a  child,  because 
maternity  is  never  uncertain  ;  she  can  only  contest  the 
identity  of  the  child.  The  right  to  disavow  is  entirely  dis- 
tinct and  different  from  that  which  all  parties  whose  inter- 
ests may  be  affected  have  to  contest  the  legitimacy  of  one 
in  whose  favor  the  legal  presumption  does  not  exist." 

In  an  old  case,  where  a  man  was  divorced  from  his  wife 
on  the  ground  of  his  impotence,  and  then  married  another 
woman  who  had  issue  during  the  marriage,  the  issue  were 
held  to  be  his,  on  the  ground,  it  was  said,  that  a  man  may 
be  Jiabilis  et  inhahilis  diversis  temporib^is}  This  case  is 
interesting  as  showing  how  strong  the  presumption  of 
legitimacy  was,  and  how  averse  the  courts  were  (and  are 
now)  to  making  exceptions  to  the  rule. 

1  Bane's  Case,  5  Coke  98,  b. 


CHAPTEK    VII. 

THE    PRESUMPTION  AGAINST    A  SPOLIATOR. 

RULiE  22 —  The  omission  of  a  party  to  an  action  to  tes- 
tify to  facts  or  to  produce  evidence  in  explanation  of, 
or  to  contradict  adverse  testimony,  raises  a  presump- 
tion ag^ainst  liis  claims,^  (A)  unless  tlie  evidence  is  not 
peculiarly  within  his  power,  (B)  or  is  privileged.  (C) 

"  It  is  certainly  a  maxim,"  said  Lord  Mansfield,  mBlatch 
V.  Archer,^  "  that  all  evidence  is  to  be  weighed  according  to 
the  proof  which  it  was  in  the  power  of  one  side  to  have 
produced,  and  in  the  power  of  the  other  to  have  contra- 
dicted." The  omission  of  a  party  to  testify  to  facts  within 
his  knowledge  in  explanation  of  or  to  contradict  adverse 
testimony,  is  a  proper  subject  of  consideration  both  in 
courts  of  equity  and  in  courts  of  law.^  "Where"  said 
Chief  Justice  Shaw,  in  Com.  v.  Wehsier^'^  probable  proof  is 
brought  of  a  state  of  facts  tendino^  to  criminate  the  accused, 
the  absence  of  evidence  tending  to  a  contrary  conclusion 
is  to  be  considered  —  though  not  alone  entitled  to  much 
weight ;  because  the  burden  of  proof  lies  on  the  accuser  to 
make  out  the  whole  case  by  substantiative  evidence.  But 
when  pretty  stringent  proof  of  circumstances  is  produced, 

1  Thompson  v.  Shannon,  9  Tex.  536  (1853) ;  Mitchell  v.  Napier,  22  Tex.  120  (1858) ; 
The  Lawrence,  15  Fed.  Kep.  G35  (1883) ;  Warner  v.  Daniels,  1  Woodb.  &  M.  90  (1845) ; 
Nicol  V.  Crittenden,  55  Ga.  497  (1S75).  There  is  no  presumption  from  a  party  not  testi- 
fyingasa  witness  in  his  own  case.  Emory  V.  Smith,  54  G a.  273  (1S75) ;  Thompson  v. 
Davitte,  59  Ga.  472  (1877).  Nor  from  a  party  failing  to  testify  where  the  jiarty's  mind 
has  become  impaired.  Cramer  v.  City  of  Burlington,  49  Iowa,  213  (1878).  In  a  suit 
against  a  married  woman  no  presumption  arises  against  lier  from  the  fact  that  her 
husband  does  not  testify.  Carter  v.  Keals,  44  N.  II.  408  (1862).  A  false  statement 
made  by  a  witness  out  of  court  raises  no  presumption  that  his  testimony  is  false. 
Glaze  V.  Blake,  56  Ala.  379  (1776). 

'-  Cowp.  63,  and  see  Wallace  v.  Harris,  32  Mich.  380  (1875). 

■">  McDonough  v.  O'Neil,  113  Mass.  92  (1873).  The  same  inference  frequently 
arises  on  trials  for  crime.   &eQ  post,  Chap,  XX, 

<  SCush.  316  (1850). 

(120) 


I 


RULE    22.]       PRESUMPTION   AGAINST   A   SPOLIATOR.  121 

tending  to  support  the  charjjc,  and  it  is  apparent  that  the 
accused  is  so  situated  that  he  could  offer  evidence  of  all 
the  facts  and  circumstances  as  they  existed,  and  show,  if 
such  was  the  truth,  that  the  suspicious  circumstances  can 
bo  accounted  for  consistently  with  his  innocence,  and  he 
fails  to  offer  such  proof,  the  natural  conclusion  is  that  the 
proof,  if  produced,  instead  of  rel)utting  would  tend  to  sus- 
tain the  charge.  But  this  is  to  be  cautiously  applied,  and 
only  iu  cases  where  it  is  manifest  that  proofs  are  in  the 
power  of  tiie  accused,  not  accessible  to   the  prosecution." 

Illustrations. 
A. 

I.  The  question  is  whether  vessel  A.  or  vessel  B.  -whieh  had  collided 
at  uight  was  uegligent.  The  seaman  who  had  charge  of  the  light  on  ves- 
sel A.  is  not  produced;  but  the  owners  allege  that  it  was  displayed. 
The  presumption  is  that  it  was  uot.i 

II.  B.,  as  indorser,  sues  D.  on  a  note  given  to  one  S.  for  a  patent  ma- 
chine which  turned  out  to  be  a  fraud.  D.'s  defense  is  thatB.  was  a  par- 
ticipant in  the  fraud,  having  traveled  with  S.  and  aided  him  when  he 
procured  the  note  fromD.  The  question  is  whether  the  B.  referred  to  is 
the  plaintiff.  B.  refuses  to  appear  at  the  trial.  The  presumption  is  that 
B.  the  plaintiff  and  B.  the  partner  of  S.  are  the  same  person.* 

III.  A.  refuses  to  produce  a  deed  which  is  part  of  a  title  which  he 
cliiims.  Tlie  presumption  is  that  if  produced,  the  deed  would  injure 
his  claim.^ 

IV.  The  plaintiff  relics  on  the  defendants'  knowledge  of  a  fact  said  to 
be  communicated  to  them  in  a  letter,  of  which  no  copy  was  kept,  but 
the  receipt  of  which  they  (the  defendants)  admit.  The  defendants  deny 
tliat  it  contained  the  statement  alleged,  but  do  not  produce  the  letter  or 
satisfactorily  account  for  its  nou-production.  The  plaintiff 's  represen- 
tation is  presumed  to  be  true.* 

Y.  B.  agrees  to  make  a  Avagon  for  M.  The  latter  gives  L.  a  written 
order  upon  B.  for  the  wagon,  which  order  B.  receives,  saying  "he  would 
accept  it  as  far  as  it  went."     On  the  trial  B.  refuses  to  produce  the  order. 


1  The  ViUc  de  n.ivrc,  7  Ben.  328  (1874). 

-  IJrown  V.  Schock,  77  Ta.  St.  471  (1S75). 

s  Il.ikhinc  V.  Ilaivcy,  4  Rurr.  24SG  (ITHO). 

*  Lumley  v.  Wagucr,  1  DeG.  M.  &  G.  004  (1S52). 


122  PRESUMPTI^'E    EVIDEXCE.  [rULE    22. 

The  presumption  is  that  it  Tvas  an  unconditional  order  for  the  delivery 
of  the  wagon. ^ 

VI.  In  an  action  on  certain  promissory  notes,  the  question  is  whether 
the  plaintiff  had  been  given  collateral  security,  and  what  amount  he  had 
collected  and  should  be  credited,  A  list  of  these  securities  is  proved 
to  be  kept  by  the  plaintiff  in  a  book  which  he  refuses  to  produce,  on  the 
pround  that  the  book  is  a  private  one  which  no  one  has  the  right  to  see. 
Hi3  conduct  raises  a  presumption  that  the  book  would  contain  evidence 
unfavorable  to  his  side  of  the  case.^ 

VII.  A  party  after  notice  refuses  to  produce  an  agreement.  The  pre- 
sumption is  that  it  is  stamped  as  required  by  law.^ 

VIII.  Certain  goods  were  seized  on  a  suspicion  that  they  had  been 
fraudulently  undervalued  when  passing  the  custom-house.  The  govern- 
ment make  a  prima  facie  case,  and  notify  the  defendants  to  produce 
their  invoices  and  correspondence  relating  to  the  goods.  This  they  do 
not  do,  but  introduce  evidence  of  experts  as  to  the  value  of  the  goods. 
The  presumption  is  against  the  defendants.* 

IX.  An  action  is  brought  by  A.  against  B.  on  a  building  contract.  A. 
refuses  to  produce  a  plan  referred  to  in  the  specifications  annexed  to 
the  contract,  B.  has  refused  to  allow  an  expert  sent  by  A.  to  examine 
the  house.  The  conduct  of  each  raises  an  unfavorable  presumption 
against  himself.^ 

X.  A  dealer  in  liquors  sues  a  customer  for  liquor  sold  and  delivered. 
The  only  evidence  is  that  of  the  dealer's  servant,  who  proves  the  delivery 
of  full  bottles  to  a  certain  number  at  the  defendant's  house — he  does 
not  know  their  contents.  The  presumption  is  that  they  were  filled  with 
the  cheapest  liquor  in  which  the  plaintiff  dealt. « 

XI.  In  an  action  for  money  lent  the  only  evidence  is  that  the  defendant 
having  asked  the  plaintiff  for  some  money,  the  latter  handed  him  a  note 
which  witnesses  believed  to  be  a  bank-note,  but  the  amount  of  which 
they  did  not  know;  neither  does  it  otherwise  appear.  The  presumption 
is  it  was  a  note  of  the  smallest  denomination  in  circulation  in  the  coun- 
try.^ 

XII.  A  drover  is  sued  for  the  price  of  certain  cattle  entrusted  to  him 
to  be  taken  to  market  and  sold.     On  the  trial,  lie  gives  no  evidence  as  to 

1  Barber  v.  Lyon,  22  Barb.  62  (1S56). 

2  Lowell  V.  Todd,  15  U.  C.  C.  P.  306  (1865) ;  and  see  Page  v.  Stephens,  23  Mich.  357 
(1871). 

3  Crisp  V.  Anderson,  1  Stark.  35  (1815). 

*  Clifton  V.  United  States,  4  How,  246  (1846) ;  Attorney-General  v.  Ilalliday,  20  U. 
C.  Q.  B.  307  (1817). 

'"  Bryant  I'.  Stillwell,  24  Pa.  St.  314  (1855). 
«  Ciunnes  v.  Pczzcy,  1  Camp.  8  (1807). 
'  Lawtou  V.  Sweeney,  8  Jur.  694  (1844). 


KULK    22.]       niESUMmON   AGAINST    A    SPOLIATOR.  123 

^vhat  he  had  received  for  them.    The  prcsumptiou  is  that  he  received  the 
•highest  price  paid  for  such  cattle. ^ 

XIII.  A  witness  refuses  to  explain  matters  within  his  knowledge. 
The  presumption  is  that  the  explauatiou,  if  made,  would  be  to  his  pre- 
judice.* 

XIV.  C.  brought  an  action  for  S'iOO  alleged  to  have  been  paid  to  B. 
as  usury.  It  appears  that  C.  had  agreed  to  pay  B.  §1,800  for  a  third  per- 
son; B.  wrote  out  notes  for  $2,000,  and  upon  C.  objecting  that  the 
amount  was  too  large,  B.  replied:  "There  is  our  account  and  other 
deals,  all  is  put  in."  C.  signed  the  notes  and  afterwards  paid  them.  On 
the  trial,  to  show  that  there  were  no  other  accounts  between  them  C. 
called  on  B.  to  produce  his  books,  which  B.  did  not  do.  The  court 
instructed  the  jui-y  that  they  might  infer  from  this  that  the  books,  If 
produced,  would  not  aid  in  the  defense.     Held,  correct.* 

XV.  The  defendant  in  a  case  is  represented  by  Ave  attorneys.  On  a 
motion  for  a  new  trial,  on  the  ground  that  one  of  the  jurors  was  related 
to  the  plaintiff,  four  of  these  attorneys  file  an  affidavit  that  they  were  not 
aware  of  this  fact  beiore  the  trial.  The  presumption  is  that  the  fifth 
attorney  did  know  of  it.* 

In  case  II.  it  was  said :  "  He  refused  to  appear,  and  his 
refusal  is  put  now  on  tlie  ground  that  he  was  informed  by 
his  counsel  and  believes  himself,  that  the  testimony  of  his 
identity  was  illegal.  Supposing  that  to  be  an  honest  opin- 
ion, yet  it  did  not  detract  from  the  prima  facie  effect  of 
his  declining  to  appear  as  evidence  against  him.  If  he 
relics  upon  his  ability  to  disprove  the  motive  imputed  he 
takes  the  risk,  but  he  leaves  the  effect  of  his  conduct  as  a 
matter  of  evidence  for  the  opposite  side  to  go  to  the  jury 
who  must  weiirh  both  sides  to  determine  the  real  motive. 
If  he  knew  he  was  not  the  Brown  who  accompanied  Simpson, 
the  accomplice,  his  motive  Avas  very  strong  to  appear  and 
by  his  presence  convince  the  witnesses  that  he  is  not  the 
same  person  called  Brown  who  accompanied  Simpson. 
Omitting  to  do  that  by  which  he  could  at  once  dissipate 
doubt,  he  leaves  his  motive  to  be  determined  by  the  jury, 

1  Clark  V.  Miller,  4  Wend.  623  (IS.'^O). 

2  Heath  V.  Waters,  40  Mich.  457  (ISTO). 

3  Cross  r.  Bell,;J4  X.  II.  82  (1S56). 

*  Brown  v.  Oattis,  55  Ga.  416  (1875). 


124:  PEESUMPTIVE    EVIDENCE.  [RULE    22. 

fissuming  the  burden  of  disproving  it  b}^  rebutting  testi- 
mony." 

In  ca^es  like  ease  III.  it  is  laid  down  that  the  case  of 
written  evidence  presents  the  strongest  ilhistration  of  the 
extent  of  the  rule.  The  non-production  of  documentary 
evidence  within  the  party's  power  raises,  it  is  said,  in  several 
cases,  a  very  strong  presumption  that  if  produced  it  would 
militate  ao-ainst  him  who  withholds  it.^  Therefore  in  an 
action  of  trespass  where  the  plaintiff  relied  upon  bare  pos- 
session although  it  appeared  that  he  had  taken  the  premises 
under  an  agreement  in  writing  which  was  not  produced,  the 
judge  charged  the  jury  that  having  proved  that  he  was  in 
possession  of  the  close  at  the  time  of  the  trespass,  the 
plaintiff  must  have  a  verdict,  but  that  to  entitle  him  to  more 
than  nominal  damages,  he  should  have  shown  the  duration 
of  the  term.  In  affirming  this  direction  Maule,  J.,  pointed 
out  that  the  plaintiff  had  the  means  of  showing  the  quantum 
of  his  interest  and  that  "  the  non-production  of  the  lease 
raised  a  presumption  that  the  production  of  it  would  do  the 
plaintiff  no  good."  * 

In  Attorney- General  Y .  Dean  of  Windsor,^  the  Master  of 
the  Rolls  said:  "Evidence  is  always  to  be  taken  most 
strongly  against  the  persons  who  keep  back  a  document, 
and  the  circumstance  that  the  body  keeping  it  back  is  a 
corporation  does  not  in  the  slightest  degree  affect  this  prin- 
ciple although  it  exonerates  the  present  members  from 
blame  in  that  respect.  It  is  true  it  is  urged  that  this  deed 
is  lost,  and  that  nothing  of  willful  suppression  is  to  be  pre- 
sumed against  the  predecessors  of  the  present  corporation, 
and  yet  the  circumstances  undoubtedly  require  an  explana- 
tion which  they  can  not  now  receive." 

In  case  VIII.  it  was  laid  down  as  a  general  rule  that 
where  a  party,  under  an  obligation  to  sustain  his  case  by 

1  Miller  v.  Jones,  32  Ark.  337  (1877) ;  Grimes  v.  Kimball,  3  Allen,  518  (18G2) ;  Bell  v. 
Hearne,  10  La.  Ann.  ."515  (1855) ,  Durgin  v.  Danville,  47  Vt.  '.)2  (1874) ;  Parks  v.  Kichard- 
8on,  4  B.  Mon.  27G  (1S43) ;  Mordecai  v.  Beall,  8  Port.  535  (J83'J). 

*  Tryman  v.  Knowles,  13  C.  B.  222  (1853). 

3  24Beav.679  (1807). 


RULE    22,]       rRESUMPTION   AGAINST   A    SrOLIATOR.  125 

proof,  relics  upon  weak  and  inferior  evidence  which  he 
produces  in  the  place  of  stronger  and  better  evidence  which 
is  witliin  his  power,  and  which  he  fails  to  produce,  the  i)re- 
suniption  arises  that  if  he  produced  the  latter  it  wouhl 
injure  instead  of  benefiting  his  case.  "  Under  tlicsc  cir- 
cumstances," said  Mr.  Justice  Nelson,  "  the  chiiniant  was 
called  upon  by  the  strongest  considerations,  personal  and 
legal,  if  innocent,  to  bring  to  the  support  of  his  defense 
the  very  best  evidence  that  was  in  his  possession  or  under 
his  control.  This  evidence  was  certainly  within  his  reach, 
and  probably  in  his  counting-room,  namely,  the  proof  of  the 
actual  cost  of  the  goods  at  the  place  of  exportation.  He 
not  only  neglected  to  furnish  it,  and  contented  himself  with 
the  weaker  evidence,  but  even  refused  to  furnish  it  on  the 
call  of  the  government,  leaving,  therefore,  the  obvious  pre- 
sumption to  be  turned  against  him  that  the  highest  and  best 
evidence  going  to  the  reality  and  truth  of  the  transaction 
would  not  be  favorable  to  the  defense.  One  of  the  general 
rules  of  evidence  of  universal  application  is  that  the  best 
evidence  of  disputed  facts  must  be  produced  of  which  the 
nature  of  the  case  will  admit.  This  rule,  speaking  techni- 
cally, applies  only  to  the  distinction  betw'een  primarj''  and 
secondary  evidence  ;  but  the  reason  assigned  for  the  appli- 
cation of  the  rule  in  a  technical  sense  is  equally  applicable, 
and  is  frequently  applied  to  the  distinction  between  the 
higher  and  inferior  degree  of  proof  speaking  in  a  more 
general  and  enlarged  sense  of  the  terms,  when  tendered  as 
evidence  of  a  fact.  The  mcanins;  of  the  rule  is  not  that 
courts  require  the  strongest  possible  assurance  of  the  matters 
in  question,  but  that  no  evidence  shall  be  admitted  which 
from  the  nature  of  the  case  supposes  still  greater  evidence 
behind  in  the  party's  possession  or  power ;  because  the 
absence  of  the  primary  evidence  raises  a  presumption  that 
if  produced,  it  would  give  a  complexion  to  the  case  at  least 
unfavoral>le  if  not  directly  adverse  to  the  interest  of  the 
party.  This  is  the  reason  given  for  exacting  in  all  cases 
the  primary  evidence,  unless  satisfactorily  accounted  for. 


126  PRESUJITTIVE   EVIDENCE.  [llULE    22. 

For  a  like  reason  —  oven  in  cases  where  the  higher  and 
inferior  testimony  can  not  be  resolved  into  primary  and 
secondary  evidence  technically  so  as  to  compel  the  produc- 
tion of  the  higher,  and  the  inferior  is  therefore  admissible 
and  competent  without  first  accounting  for  the  other,  the 
same  presumption  exists  in  full  force  and  effect  against  the 
party  withholding  the  better  evidence  ;  especially  when  it 
appears  or  has  been  shown  to  be  in  his  possession  or  power, 
and  must  and  should  in  all  cases  exercise  no  inconsiderable 
influence  in  assigning  to  the  inferior  proof  the  degree  of 
credit  to  which  it  is  rightfully  entitled.  It  is  well  observed 
by  Mr.  Evans ^  in  substance  that  if  the  weaker  and  less  satis- 
factory evidence  is  given  and  relied  on  in  support  of  a  fact 
when  it  is  apparent  to  the  court  and  jury  that  proof  of  a 
more  direct  and  explicit  character  was  within  the  power  of 
the  party,  the  same  caution  which  rejects  the  secondary 
evidence  will  awaken  distrust  and  suspicion  of  the  weaker 
and  less  satisfactory;  and  that  it  may  well  be  presumed,  if 
a  more  perfect  exposition  had  been  given  it  would  have  laid 
open  deficiences  and  objections  which  the  more  obscure  and 
uncertain  testimony  was  intended  to  conceal."  In  Blach 
V.  Wright,  it  was  said  :  "  It  is  classed  by  writers  upon  the 
law  of  evidence  and  presumptions  as  amongst  the  strongest 
circumstantial  proofs  against  a  person,  that  he  omits  to 
give  evidence  to  repel  circumstances  of  suspicion  against 
him,  which  he  would  have  it  in  his  power  to  give,  if  those 
circumstances  of  suspicion  were  unfounded.  Hence  when 
witnesses  for  example  depose  that  the  signature  to  a  bond 
is  not  in  the  handwriting  of  the  person  sued,  and  the  obligee 
and  alleged  obligor  live  near  each  other  and  in  the  imme- 
diate  vicinity  of  the  place  of  trial,  and  the  latter  is  a  man 
of  extensive  business  whose  handwriting  is  generally  known, 
and  the  former  calls  no  witness  to  the  point  when  he  might 
so  easily  do  so,  if  the  signature  were  genuine,  the  omission 
affords  the  same  kind  of  evidence  against  the  deed  that  the 

1  2  Evans'  Pothier,  149. 


RULE    22.]       PKESUMmON   AGAINST   A   SPOLIATOR.  127 

omission    of  the    possessor   of    stolen    property,    recently 
stolen,  to  account  for  his  possession  does  against  him."  ^ 

In  case  IX.  the  court  referred  to  A.'s  conduct  as  fol- 
lows:  "Maps,  surveys  and  drawings  are  not  to  be  distin- 
guished from  other  papers  in  this  respect.  A  party  who 
withholds  them  when  he  ought  to  produce  them,  and  attempts 
to  supply  their  place  by  secondary  evidence,  is  lial)lc  to  the 
same  presumption  against  him  of  trying  to  suppress  the 
truth  as  he  would  subject  himself  to  by  withholding  paper 
writing."  And  upon  B.'s  method  of  acting  in  the  case,  the 
court  animadverted  at  more  Icnjjth.  "Before  the  trial," 
said  Black,  J.,  who  delivered  the  opinion,  "  the  plaintiff 
sent  a  person  to  examine  the  house  so  that  he  might  be  able 
to  testify  how  the  work  had  been  done.  The  witness 
frankly  explained  what  he  came  for  and  the  defendant 
refused  to  let  him  go  through  the  house  for  such  a  purpose. 
The  evidence  of  this  transaction  was  objected  to,  but  the 
court  admitted  it.  The  admission  of  it  is  complained  of 
here  because  it  was  calculated  to  prejudice  the  minds  of  the 
jury  against  the  defendant's  cause.  Doubtless  it  would 
have  that  effect  and  so  it  ought  to  have.  To  smother  evi- 
dence is  not  much  better  than  to  fabricate.  A  party  who 
shuts  the  door  upon  a  fair  examination,  and  then  prevents 
the  jury  from  learning  a  material  fact  must  take  the  conse- 
quences of  any  honest  indignation  which  his  conduct  may 
excite.  The  presumption  in  odium  spoliatoris  is  per- 
fectly legitimate.  It  is  so  natural  and  so  just  that  it  is 
a  part  of  every  civilized  code.  We  think  this  evidence 
most  clearly  admissible  and  we  certainly  would  not  have 
found  fault  with  the  judge  if  he  had  gone  further  and 
instructed  the  jury  that  it  afforded  some  ground  for  sup- 
posing the  whole  defense  to  be  unfair.'^  It  ought  to  be 
understood  that  where  a  party  has  the  subject-matter  of 
the  controversy  under  his  exclusive  control,  it  is  never  safe 


'  Black  f.  Wright,  9  Ired.  (L.)  447  (1S49). 

-  Thcdefeuse  was  that  the  work  ou  the  house  liad  been  imperfectly  and  ncgli- 
gcutly  done. 


128  PRESTOrPTIYE    EVIDENCE.  [rULE    22. 

to  refuse  the  witnesses  on  the  other  side  an  opportunity  to 
examine  it  unless  he  is  able  to  give  a  very  satisfactory  rea- 
son. Here  there  was  no  ground  to  believe  that  the  witness 
would  misrepresent  what  he  might  see.  If  the  defendant 
had  felt  such  a  suspicion,  he  could  have  shown  the  house  to 
as  many  others  as  he  chose,  and  overwhelmed  the  one  per- 
jured man  by  a  host  of  honest  ones.  I  ought  to  add,  how- 
ever, that  such  evidence  must  always  be  confined  strictly  to 
the  conduct  of  the  party  in  and  about  the  very  cause  in 
which  it  is  used.  It  must  not  only  relate  to  the  same 
subject,  but  to  the  same  investigation  of  it ;  for  it  is  received 
not  on  any  principle  of  primitive  justice,  but  on  the  natural 
presumption  that  he  withholds  the  truth  because  he  knows 
that  it  will  work  against  him,  and  that  no  man  prefers  dark- 
ness to  light,  except  because  he  is  conscious  that  his  deeds 
are  evil.  If,  therefore,  the  defendant  should  not  refuse  an 
examination  for  the  purpose  of  the  next  trial,  he  can  not  be 
prejudiced  by  what  he  did  before  the  last,  etc.  It  is  true, 
also,  that  the  strength  of  such  a  presumption  diminishes  in 
very  rapid  proportion  to  the  time  that  elapses  between  the 
act  out  of  which  it  rises,  and  the  judicial  inquiry  which  the 
act  was  intended  to  influence." 

Case  X.  is  an  illustration  of  the  rule  that  where  the  ven- 
dor of  goods  sold  without  any  express  stipulation  as  to 
value  neglects  or  refuses  to  give  any  evidence  of  their 
value,  they  are  presumed  to  be  worth  only  the  lowest  price 
for  which  goods  of  their  description  usually  sell. 

In  case  XI.  it  was  said:  "  The  handing  of  a  note  to  a 
party  is  prima  facie  evidence  of  a  loan,  and  as  there  was 
no  proof  of  the  amount  of  the  value  secured  by  the  note, 
the  jury  ought  to  presume  it  to  have  been  the  lowest  in  cir- 
culation in  this  country.^ 

In  case  XH.  it  was  said:  "  Tlie  evidence  as  to  the  value 
of  cattle  was  somewhat  contradictory,  but  it  is  to  be  borne 
in  mind  that  it  was  in  the  defendant's  power  to  remove  all 

1  And  see  Ilayden  v.  llayward,  1  Camp.  180  (1808), 


RULE    22.]       PRESUJIPTIOX   AGAINST   A   SPOLIATOR.  129 

doubt  on  the  subject,  as  they  and  they  alone  knew  to  whom 
they  were  sold  and  for  what  prices.  Under  such  circum- 
stances it  was  the  duty  of  the  jury  to  allow  the  hidiest  sum 
which,  according  to  the  evidence  in  the  case,  they  could 
probably  have  been  sold  for." 

In  case  XIII.  it  was  said  :  "  If  defendant.  Waters,  had 
performed  the  duty  which  common  honesty  required  of  him, 
the  production  of  his  books  would  probably  have  made  the 
accounting  brief  and  simple.  It  would  also  have  put  an 
end  to  any  question  of  fraud,  if  his  conduct  had  been,  as  he 
claims,  what  it  should  be.  No  stronger  evidence  of  prob- 
able fraud  could  exist  than  the  obstinate  and  offensive  man- 
ner in  which  every  attempt  to  get  at  the  real  state  of  the 
partnership  business  was  resisted,  not  only  by  Daniel 
^Yaters,  but  by  his  associates  and  his  banker.  The  latter, 
who  seems  to  have  been  honest  in  his  remarkable  notion 
that  banking  business  was  privileged  from  scrutiny,  was 
probably  free  from  any  wrong  design.  The  spirit  of  the 
others  is  manifest.  The  effect  of  this  scandalous  conduct 
was  to  protract  the  inquiry  for  several  years,  until,  as  is 
now  claimed,  the  books  have  been  destroyed.  And  in  this 
condition  of  affairs  defendant  contends  that  his  general 
denials  in  regard  to  profits  should  exempt  him  from  any 
decree.  And  it  is  urged  that  by  failing  to  have  him  pun- 
ished for  contempt  or  compelled  to  answer,  complainant 
lost  the  means  of  proof.  We  are  certainly  convinced  that 
it  is  to  be  regretted  the  conduct  of  defendant  was  not  pun- 
ished severely.  But  it  is  not  very  plain  tons  how  far  such 
punishment  would  have  advanced  the  accounting.  Com- 
plainant had  the  right  to  introduce  the  best  evidence  at  her 
command  and  make  out  as  good  a  case  as  she  could.  Nor 
do  we  think  much  attention  should  be  paid  to  defendant's 
testimony.  The  benefit  of  cross-examination  is  an  essen- 
tial condition  to  the  reception  of  direct  testimony.  There 
arc  cases  in  which  a  failure  to  respond  on  cross-examination 
will  justify  the  exclusion  of  at  least  so  much  of  t!ie  direct 
testimony  as  it  might  have  qualified.     It  must  always  dam- 

9 


130  PRESUMPTIVE  EVIDENCE.        [rULE  22. 

£i£:c  its  credit.  "\Yhen  the  witness  who  evades  or  refuses 
cross-examination  is  the  chief  party  in  interest,  or  one  who 
is  plainly  seeking  to  screen  him,  it  is  no  more  than  com- 
mon justice  to  disregard  his  testimony  in  his  own  favor 
when  it  needs  explanation.  We  may,  and  should  assume, 
that  when  he  refuses  to  explain  what  he  can  explain,  the 
explanation  would  be  to  his  prejudice.  And  when,  as  in 
this  case,  his  testimony  is  directly  falsified  by  facts  well 
proved,  the  reasons  for  rejecting  it  are  very  strong." 

In  case  xrv.  it  was  said:  *'  The  court  charged  the  jury 
that  they  might  infer  from  the  fact  that  the  books  were  not 
produced,  that  they  would  not  aid  the  defense,  if  produced. 
Upon  this  point  there  are  many  authorities,  some  of  which 
we  will  consider.  Greenleaf  says  that  the  mere  non-pro- 
duction of  books  upon  notice  has  no  other  legal  effect  than 
to  admit  the  other  party  to  prove  their  contents  by  parol, 
unless  under  special  circumstances,^  and  he  cites  Cooper  v. 
Gibbons,^  vtrhich  sustains  the  position.  Substantially  to  the 
same  point  are  Roscoe's  Cr.  Ev. ;  ^  Life  and  Fire  Ins.  Co. 
V.  Mechanic  Fire  Lis.  Co.,'^  /Symington  v.  McLin.^  In 
Clifton  V.  United  8tates,^  goods  had  been  seized  upon  sus- 
picion of  being  fraudulently  imported.  On  the  trial  it  was 
shown  by  the  government  that  there  was  sufiicicnt  ground 
for  the  opinion  of  the  court  that  probable  cause  existed  for 
the  prosecution,  and  notice  was  given  to  the  claimant  to  pro- 
duce his  books  and  accounts  relating  to  those  goods.  This 
he  declined  to  do,  and  it  was  held  to  be  proper  for  the  court 
to  instruct  the  jury,  if  the  claimant  withheld  the  testimony 
of  his  accounts  and  transactions  with  the  parties  abroad 
from  whom  he  received  the  goods,  they  were  at  liberty  to 
presume  that,  if  produced,  they  would  have  operated 
unfavorably  to  his  cause.  In  Thayer  v.  Middlesex  Mutual 
Fire  Lis.  Co.,''  Shaw,  C.  J.,  says:    'The  rule  that  upon 


1  1  Greenl.  Ev.,  sec.  37.  *  1  Dev.  &  B.  291. 

2  3  Cainp.  .%3.  «  4  How.  242. 
8  p.  11.  7  10  Pick.  329. 
*  7  Wend.  31, 


KULE    22.]       PKESUMl'TION   AGAINST   A    SPOLIATOR.  131 

the  trial  of  controverted  facts  the  part}'  having  the  custody 
and  control   of   books,   documents,  and  papers,  shall,  on 
notice,  produce  them,  and  that  on  refusal  to  do  so  the 
adverse  party  may  give  evidence  of  their  contents,  and  that 
all  inferences  from  such  secondary  evidence  shall  be  taken 
most  strongly  against  the  party  refusing  to  produce  them, 
is  a  highly  reasonable  and  beneficial  rule,  tending  to  the  dis- 
covery of  truth,  and  to  the  formation  of  honesty,  frankness, 
and  fair  dealing,  and  ought  not  to  be  shackled  or  obstructed 
by  strict  constructions  or  technical  niceties.'     In  Jackson  v. 
Mc  Vey^  defendant  gave  general  evidence  that  a  deed  which 
was  in  court,  in  possession  of   the  opposing  party,  who 
refused  to  produce  it,  had  been  in  the  possession  of  a  wit- 
ness who  was  upon  the  stand,  and  the  witness  testified  that 
he  had  often  perused  the  deed,  even  supposed  that  the 
premises  Avere  included  in  it.     But  on  cross-examination  he 
said  that  he  could  not  recollect  a  single  course  stated  in  the 
deed,  and  that  he  did  not  know,  but  thought  the  premises 
were  embraced  in  it.     The  circuit   judge  disregarded  the 
testimony,  but  the  Supreme  Court,  on  a  motion  for  a  new 
trial,  held  that  the  testimony  should  have  gone  to  the  jury, 
with  strong  intimations  that  they   ought  to  believe   that 
the  premises  were  included  in  the  deed;  since  if  they  were 
not,  the  plaintiff,  by  producing  it,  could  show  with  certainty 
how  the  fact  was  ;  and  that  its  non-production,  the  deed 
being   in    court,    was   very   strong    presumptive   evidence 
against  the  plaintiff.     The  rule  to  be  extracted  from  the 
authorities  would  appear  to  be  this,  that  when  the  books  or 
papers  are  shown  to  be  in  the  hands  of  the  opposing  party, 
but  no  evidence  is  given  of  their  contents,  the  refusal  to 
produce  them  is  not  to  be  regarded  as  prima  facie  evidence 
that,  if  produced,  they  would  prove  what  the  party  calling 
for  them  alleges  they  contain.     In  such  a  case  there  is  no 
legal  presumption  as  to  their  contents.     But  where,  after 
notice  and  refusal  to  produce  them,  and  it  is  shown  or 

1  18  Johns.  330. 


135  PRESUMPTIVE    EVIDENCE.  [rULE    22. 

admitted  thnt  the}-  are  under  the  control  of  the  party,  and 
secondary  evidence  is  given,  and  such  evidence  is  imperfect, 
vas^ue,  and  uncertain,  every  intendment  and  presumption  is 
to  be  made  against  the  party  who  might  remove  all  doubt 
by  producing  the  higher  evidence.  Before  any  presump- 
tion can  be  made  against  the  party  on  the  ground  of 
refusal  to  produce,  and  having  the  possession  of  the  books 
or  papers,  some  general  evidence  of  their  contents,  as 
applicable  to  the  case,  must  be  given.  The  alleged  usury 
in  this  case  consisted  in  the  addition  of  $200  to  notes  given 
for  a  debt  of  $1,800;  and  upon  tiie  plaintiff  's  objecting  that 
the  notes  were  too  large,  the  defendant  replied:  '  There  is 
our  account  and  other  deals  —  all  is  put  in.'  Now,  although 
this  evidence  might  not  be  such  as  to  raise  a  legal  presump- 
tion against  the  defendant,  or  to  make  out  a  prima  facie 
case  that  the  books,  if  produced,  would  aid  the  plaintiff, 
yet  we  think  that  after  such  evidence,  and  notice  to  the 
party  to  produce  the  books,  which  appeared  to  be  under 
the  control  of  the  defendants,  the  jury  might  and  would 
infer,  as  a  matter  of  fact,  that  the  production  of  the  books 
would  not  aid  the  defense.  Such  would  be  the  natural 
effect  upon  the  mind  in  considering  such  evidence  ;  and 
unless,  as  matter  of  law,  the  court  must  say  that  such 
inference  shall  not  be  drawn,  the  ruling  must  be  sustained  ; 
for  it  was  simply  telling  the  jury  that  they  might  draw  a 
negative  inference,  which  was  a  natural  consequence  from 
the  fact,  and  which  in  all  probability  they  would  have 
drawn  without  any  intimation  from  the  court  to  that  effect. 
"We  are  aware  of  no  rule  of  law,  nor  do  the  authorities  show 
that  the  jury  might  not  take  such  a  course.  Upon  the  doc- 
trine of  Clifton  V.  The  United  /States,  it  would  seem  that 
the  cf)urt  might  have  instructed  the  jury  that  a  legal  pre- 
sumption arose  in  favor  of  the  plaintiff ;  but  that  is  not  the 
question  as  presented  by  this  case,  and  the  ruling  did  not 
go  to  that  extent.  So  far,  however,  as  the  court  went,  in 
the  instructions  given,  we  think  that  the  authorities  gener- 


I 


RULE    22.]       PRESUMPTION    AGAINST   A   SPOLIATOR.  133 

ally  will  sustain  the  ruling,  and  that  the  defendants  have  no 
good  cause  of  complaint.  It  is  not  a  case  destitute  of  evi- 
dence, and  does  not  fall  within  the  rule  in  such  cases.  The 
plaintiff  had  shown  that  the  payee  of  the  notes  had  said  in 
effect  that  his  account  was  included  in  the  notes,  and  it  was 
this  account  that  Avas  called  for,  and  if  the  books  would 
have  aided  the  defendants  they  would  no  doubt  have  been 
produced." 

In  Byaithwaile  v.  Coleman,^  which  was  an  action  by  the 
indorsee  against  the  drawer  of  a  note,  the  only  evidence 
of  notice  of  dishonor  was  the  statement  of  the  defendant  to 
a  witness.  *♦  I  have  several  good  defenses  to  the  action; 
in  the  first  place  the  letter  was  not  sent  to  mo  in  time." 
The  defendant  had  been  notitied  to  produce  this  letter,  but 
did  not  do  so.  Lord  Lyndhurst  directed  the  jury  that  they 
might  presume  that  the  letter,  if  produced,  would  be  found 
to  have  contained  a  notice  in  proper  time.  On  appeal 
Denman,  C.  J.,  thought  the  direction  right.  "  The  defend- 
ant admits,"  said  he,  «♦  he  received  the  letter  and  as  he  does 
not  produce  it,  it  might  be  fairly  inferred  by  the  jury  that  it 
was  in  time."  But  the  other  members  of  the  court  were 
of  a  contrary  opinion,  and  a  new  trial  was  ordered.  "  The 
letter,"  said  Patteson,  J.,  one  of  the  majority,  "might 
have  been  dated  on  the  proper  day,  but  sent  by  private 
hand  or  in  some  mode  so  that  it  did  not  arrive  till  many 
days  after;  was  the  defendant  therefore  bound  to  produce 
a  letter  which,  on  the  face  of  it,  would  destroy  his 
owm  case,  and  which  he  might  not  have  evidence  to 
explain  ?  I  think  not ;  and  that  it  is  not  to  be  pre- 
sumed against  him  from  the  mere  non-production  of 
the  letter,  that  the  notice  was  sent  in  time."  But 
in  the  case  of  CurJewis  v.  Corjiehl,^  which  six  years  later 
came  before  the  same  court,  and  nearly  the  same  judges, 
a  different  conclusion  was  reached.     The  issue  was  as  in  the 

1  1  narr  &  Woll.  220  (1805).  J  1  Q.  B.  eu  (Idll). 


134  PEESmiPTIVE   EVIDENCE.  [rULE    22. 

former  case  Tvhethcr  the  defendant  had  received  due  notice 
of  dishonor  of  a  bill  of  exchange.  There  was  evidence  that 
the  day  after  the  dishonor,  the  plaintiff  wrote  and  sent  a 
letter  to  the  defendant  which  was  put  in  his  letter-box,  the 
office  beinsc  closed.  Some  time  after  the  defendant  told 
the  plaintiff  's  attorney  that  the  bill  had  not  been  presented 
in  time,  but  said  nothing  as  to  the  notice.  The  defendant, 
though  notified  to  produce  this  letter  on  the  trial,  did  not  do 
so.  It  was  held  that  the  jury  might  presume  that  the  letter 
contained  a  regular  notice  of  dishonor.  In  Bell  v.  Frankis^^ 
also  an  action  by  the  indorsee  against  the  drawer  of  a 
bill  of  exchange,  it  appeared  that  the  defendant  had 
told  a  witness  that  he  expected  to  receive  by  post  a 
notice  of  its  dishonor,  and  afterwards  gave  him  a  letter 
he  received  by  post,  requesting  hiin  to  negotiate  a  renewal 
of  the  bill;  but  the  letter,  which  had  found  its  way  into 
the  defendant's  hands,  was  not  produced  at  the  trial.  It 
was  ruled  that  the  Jury  were  warranted  in  inferring  that 
no  notice  of  dishonor  had  been  given. ^ 

Where  withholding  testimony  raises  a  presumption  that  a 
fact  not  clearly  proved  or  disproved  exists,  it  is  not  error 
for  the  court  to  allude  to  the  fact  of  withholding  as  a  cir- 
cumstance strengthening  the  proof.^  But  an  instruction 
that  "  everything  may  be  presumed  against  the  spoliator  of 
the  will,"  has  been  held  too  broad.* 

In  Hammersmith,  etc.,  li.  Co.  v.  Brand,^  Lord  Cairns,  in 
speaking  of  the  measure  of  damage  for  annoyance  arising 
from  the  vibration  of  passing  railway  trains,  said:  "  What 
you  have  to  find  is  what  is  the  actual  deterioration  in  value. 
You  have  a  certain  house  and  near  it  what  I  may  call  a 
vibrating  railway  —  I  mean  a  railway  in  the  use  of  which 
there  can  not  fail  to  be  vibrations  —  the  house  was  of  a  cer- 


1  4  Man.  &  Gr.  447  (1842). 

a  And  see,  Lobb  v.  Stanley,  5  Q.  B.  574  (8144.) 

3  Frick  V.  Barbour,  64  Pa.  St.  120  (1870). 

■•  Bolt  V.  Wood,  .'50  Miss.  136  (1878). 

6  L.  R.  4  11.  L.  224  (18C9). 


RULE    22.]      PRESUMPTIOX   AGAINST  A   SrOLIATOR.  135 

tain  valuo  before  the  railway  was  put  there  ;  if  the  railway- 
causes  vibration,  evidence  can  easily  be  obtained  to  prove 
what  the  amount  of  deterioration  in  valuo  is,  and  the  sum 
can  bo  awarded  accordingly.  The  subject  may  bo  illus- 
trated farther  by  supposing  a  house  used  for  a  particular 
purpose,  say  that  of  a  watch  or  clockmaker,  which  requires 
particular  steadiness,  serious  injury  might  bo  done  there, 
and  the  house  might  become  useless  for  the  particular  pur- 
pose for  which  it  was  used  before.  But  in  addition  to  that 
it  is  said  you  ought  to  know  how  many  trains  a  day  there 
will  be  running  and  the  weight  of  them,  and  the  speed  at 
which  they  will  pass.  There  is  a  well  known  principle 
which  applies  to  such  cases  which  is  that  if  the  persons 
against  whom  the  claim  is  made  are  not  w'illing  to  bind 
themselves  as  to  the  maximum  number  of  trains  or  the 
weight  or  the  speed,  then  the  sum  must  be  taken  most 
strongly  against  the  company,  upon  the  principles  enunci- 
ated in  the  well  known  old  case  of  Armory  v.  Delamarie, 
and  the  largest  amount  of  injury  which  can  bo  sustained 
would  probably  be  considered  to  be  the  amount  to  be 
awarded  by  the  tribunal  which  has  to  award  compensa- 
tion." 

B. 

I.  A.  does  not  produce  one  of  his  muniments  of  title.  He  proves  that 
it  is  in  the  possession  of  B.,  from  whom  he  can  not  obtain  it.  There  is 
no  presumption  against  A.^ 

II.  In  a  suit  between  C.  and  D.  C.  docs  not  call  F.,  who  was  a  witness 
to  the  thing  in  dispute.  There  is  no  presumption  against  C.  if  it  was 
equally  within  the  power  of  D.  to  call  F.^ 

III.  There  is  no  proof  that  a  part}'  has  withheld  evidence.  The  non- 
production  of  liettcr  evidence,  more  full  and  deOuite  than  he  presents, 
raises  no  presumption  against  him.' 

In  cases  like  case  I.  the  rule  is  that  where  the  evidence 
alleged  to  be  withheld  is  unattainable,  the  presumption  does 

1  Gilbert  V.  Ross,  7  M.  &  W.  121  (1840) ;  JIarston  v.  Downcs,  1  Ad.  &  Ell.  32  (1SS4). 
=  Scovill  f.  r.ahhvin,  20  Conn.  313  (It^GS;. 
3  Schnell  v.  Toomer,  60  Ga.  168  (lb76). 


136  PRESUMPTIVE  EVIDENCE.        [rULE  22. 

not  arise.  Therefore,  if  a  deed  be  in  the  possession  of  an 
adverse  party,  and  not  produced,  or  if  it  be  lost  and 
destroj'-ed,  no  matter  whether  by  the  adverse  party  or  not, 
secondary  evidence  is  clearly  admissible;  and  if  the  deed 
be  in  the  possession  of  a  third  person  who  is  not  by  law 
compellable  to  produce  it,  and  he  refuses  to  do  so,  the  result 
is  the  same.  In  Mericin  v.  Ward,^  an  action  for  trover, 
the  defendants  had  notified  the  plaintiffs  to  produce  their 
books  in  which  entries  of  the  goods  claimed  were  made. 
The  plaintiffs  did  not  produce  them,  and  the  defendants 
asked  the  judge  to  instruct  the  jury  that  this  refusal  created 
a  presumption  against  them,  which  ho  refused.  On  appeal 
his  ruling  was  affirmed.  *'  Where  a  party,"  said  Waite,  J., 
'*  has  in  his  possession  a  deed  or  other  instrument  necessary 
to  support  his  title,  and  he  refuses  to  produce  it,  and 
attempts  to  make  out  his  title  by  other  evidence,  such 
refusal  raises  a  strong  presumption  that  the  legitimate  evi- 
dence would  operate  against  him.  But  this  rule  does  not 
apply  to  such  documents  as  a  party  has  no  right  to  give  in 
evidence,  without  the  consent  of  the  adverse  party.  In  this 
case  the  action  was  trover.  The  plaintiff's  books'  were  not 
legal  evidence  in  support  of  his  title.  Had  he  produced 
them  in  compliance  with  the  notice  he  could  not  have  read 
them  to  the  jury  without  the  defendants'  permission.  He 
was,  therefore,  under  no  obligation  to  produce  books  which 
the  defendants  might  or  might  not  give  in  evidence  at  their 
pleasure.  His  refusal  to  produce  them  gave  the  defendants 
a  right  to  give  secondary  evidence  of  their  contents  and 
nothing  more.  That  right  was  conceded  on  the  trial,  but 
such  secondary  evidence  was  not  given.  In  this  respect 
there  is  no  cause  for  complaint,  and  none  is  made.  The 
question  is  not  what  inference  the  jury  might  have  drawn 
from  the  books  had  they  been  produced  ;  or  from  the  sec- 
ondary evidence  of  tbe  defendants  had  it  been  given,  but 
Vv'hether,  in  the  absence  of  all  such  evidence,  they  were  in 

1  10  Conu.  377  (l&i3). 


RULE    23.]      PRESUMPTION   AGAINST   A   SPOLIATOR.  137 

law  bound  to  raise  a  presumption  a<2:ainst  the  plaintiff.  A 
presumption  of  "what?  That  the  books  contained  entries 
showing  that  the  phiintiff  had  no  title.  It  is  difficult  to  see 
what  else  they  could  presume  against  him.  This  surely 
would  be  going  too  far." 

"The  circumstance,"  it  was  said  in  case  II.,  "that  a 
particular  person  who  is  equally  within  the  control  of  both 
parties  is  not  called  as  a  Avitness  is  too  often  made  the  sub- 
ject of  comment  before  the  jury.  Such  a  fact  lays  no 
ground  for  any  presumption  against  either  party.  If  the 
witness  could  aid  either  party,  such  party  would  probably 
produce  him.  As  ho  is  not  produced  the  jury  have 
no  right  to  presume  anything  in  respect  to  his  knowl- 
edge of  any  facts  in  the  case." 

C. 

I.  A.  does  not  call  B.,  who  possesses  important  information  concern- 
ing the  case.  No  presumption  arises  against  A.  if  B.  is  A.'s  professional 
adviser,  and  the  knowledge  was  professionally  acquired. i 

KULiE  23.  — But  the  presumption  arising  from  tlie  non- 
production  of  evidence  within  the  power  of  the  party 
does  not  relieve  the  opposite  party  altogether  from 
the  burden  of  proving  his  case.^ 

Illustrations. 

I.  On  the  trial  of  an  action  the  fact  sought  to  be  proved  by  the  pro- 
duction of  books  and  papers  which  the  party  in  whose  posscssi'in  they 
were  was  notitled  to  produce  is,  that  a  deed  existed  from  one  of  the  part- 
ners of  a  firm  to  the  Arm  itself.  The  jury  are  not  at  liberty  to  consider  a 
refusal  to  produce  the  books  and  papers  as  u  reason  upon  which  to  pre- 
sume the  existence  of  the  deed.* 

II.  In  an  action  on  a  fire  insurance  policy  a  party  refuses  to  produce 
books  and  papers  in  his  possession  after  a  notice  to  produce  had  been 
duly  served  on  him.    This  does  not  raise  the  presumption  that,  if  pro- 

1  Wentworth  v.  Lloyi,  10  H.  L.  Ca8.  589  (1SC4). 

=  Cooper  r.  Gibbons,  3  Camp.  3(i3  (1813) ;  Attorney-General  v.  Lc  Merchant,  3 
Term  Uop.  201. 

»  Uanson  v.  Eustice,  2  How.  653  (1864). 


138  PEESUMPTIVE  EVIDENCE.        [ruLE  23. 

duced,  they  would  establish  the  fact  which  the  party  calling  for  them 
alleges  they  would  prove. ^ 

III.  In  an  action  on  a  policy  of  fire  insurance,  the  defense  is  that  the 
preliminary  proofs  of  loss  were  not  as  required  by  the  terms  of  the  policy. 
The  proofs  are  in  the  defendant's  possession  and  they  are  notified  to  pro- 
duce them,  but  refuse.  The  presumption  does  not  arise  that  the  papers 
c  ntained  proper  proof  .^ 

IV.  Certain  defendants  are  sued  for  penalties  in  defrauding  the  gov- 
ernment of  revenue  on  whisky.  The  trial  court  instructs  the  jury  that  it 
is  a  rule  of  law  that  where  a  party  has  proof  in  his  power,  which  if  pro- 
duced would  render  material  facts  certain,  the  law  presumes  against  him, 
if  he  omits  to  produce  it,  and  authorizes  a  jury  to  resolve  all  doubts 
adversely  to  his  defense.    This  is  erroneous.' 

In  case  I.  it  was  said:  "All  inferences  shall  be  taken 
from  the  inferior  evidence  most  strongly  against  the  party 
refusing  to  produce ;  but  the  refusal  itself  raises  no  pre- 
sumption of  suspicion  or  imputation  to  the  discredit  of  the 
party,  except  in  a  case  of  spoliation  or  equivalent  suppres- 
sion. There  the  rule  is  that  omnia  proesumuntur  contra 
spoliatorem.  In  other  words,  with  the  exception  just  men- 
tioned, the  refusal  to  produce  books  or  papers  upon  notice 
is  not  an  independent  element  from  which  anything  can  be 
inferred  as  to  the  point  which  is  sought  to  be  proved  by  the 
books  or  papers.  Nor  can  any  views  of  policy  growing 
out  of  the  refusal  be  associated  with  the  secondary  evi- 
dence to  enlarge  the  province  of  the  jury  to  infer  or  pre- 
sume the  existence  of  the  fact  to  which  that  evidence  relates. 
For  considerations  of  policy,  being  the  source,  origin,  and 
support  of  artificial  presumptions,  having  no  application  to 
conclusions  as  to  actual  matter  of  fact,  the  finding  of  a  jury 
in  conformity  with  such  considerations  and  not  according  to 
their  actual  conviction  of  the  truth,  resolves  itself  into  a 
rule  or  presumption  of  law." 

"The  rule,"  said  the  court  in  case  II.,  "is  this.  The 
party  in  such  a  case  may  give  secondary  or  parol  proof  of 

1  Life  and  Fire  Ins.  Co.  v.  Mechanics'  Fire  Ins.  Co.,  7  Wend.  34  (1S31) ;  Hector  v. 
Eector,  8  111.  120  (l.SJG). 

2  Spring  Garden  Mut.  Ins.  Co.  v.  Evans,  9  Md.  1  (1856). 
8  Chaffee  v.  U.  S.,  18  Wall.  616  (1373). 


RULE    23,]      rUESUMTTION   AGAINST   A   SPOLIATOR  139 

the  contents  of  such  books  or  papers  if  they  arc  sliown  or 
admitted  to  be  in  the  possession  of  the  opposite  party,  and 
if  such  secondary  evidence  is  imperfect,  vague,  and  uncer- 
tain as  to  dates,  sums,  boundaries,  etc.,  every  intendment 
and  presumption  shall  be  against  the  party  who  might 
remove  all  doubt  by  producing  the  higher  evidence.  But 
they  must  be  shown  to  bo  in  his  possession,  and  some  gen- 
eral evidence  of  such  parts  of  their  contents  as  are  applic- 
able to  the  case  must  first  be  given  before  any  foundation 
is  laid  for  any  inference  or  intendment  on  account  of  their 
non-production." 

"  There  was  no  obligation  on  the  defendant,"  it  was  said 
in  case  III.,  "  to  show  any  defect  in  the  preliminary  proof 
until  the  plaintiff  had  first  made  out  fi  prima  facie  case  of 
compliance  with  the  requirements  of  the  policy  on  that  sub- 
ject, which  we  think  has  not  been  done." 

In  case  rv.  it  was  said;  <'  The  purport  of  this  was  to  tell 
the  jury  that  although  the  defendants  must  be  proved  guilty 
beyond  a  reasonable  doubt,  yet  that  if  the  government  had 
made  out  a  prima  facie  case  against  them,  not  one  free 
from  all  doubt,  but  one  which  disclosed  circumstances 
requiring  explanation,  and  the  defendants  did  not  explain, 
the  perplexing  question  of  their  guilt  need  not  disturb  the 
minds  of  the  jurors  ;  their  silence  supplied  in  the  presump- 
tion of  the  law,  that  full  proof  which  should  dispel  all  rea- 
sonable doubt.  In  other  words,  the  court  instructed  the 
jury  in  substance  that  the  government  need  only  prove  that 
tho  defendants  were  presumptively  guilty,  and  the  duty 
thereupon  devolved  upon  them  to  establish  their  innocence, 
and  if  they  did  not  they  were  guilty  beyond  a  reasonable 
doubt.  *  *  *  The  error  is  })alpable  in  its  statement. 
All  the  authorities  condemn  it.  *  *  *  The  instruction 
sets  at  naught  established  principles,  and  justifies  the  criti- 
cism of  counsel  that  it  substantially  withdrew  from  the 
defendants  their  constitutional  right  of  trial  by  jury,  and 
converted  what,  at  law,  was  intended  for  their  protection 


1-10  PEESUirPTIVE    EVIDENCE.  [rULE    24. 

—  the  right  to  refu'^e  to   testify  —  into  the  machinery  for 
their  sure  destruction." 


RUtiE  24.  —  The  alteration,  suppression,  falsification, 
destruction  or  manufacturing'  of  evidence  raises  a 
presunii)tion  against  the  spoliator,  where  the  evidence 
is  relevant  to  the  case  (A),  or  it  was  his  duty  to  pre- 
serve it  (B),  —  omnia  prtesumuntur  contra  spoliatorem. 

The  maxim  omnia  proesumuntur  contra  spoliatorem  em- 
braces most  frequently  cases  of  the  destruction  of  written 
evidence.  Manufacturing  evidence  also  falls  within  this 
rule,  but  it  has  been  said  that  to  smother  evidence  is  not 
much  better  than  to  frabricateit.^  "  Spoliation,"  it  is  said 
in  one  case,^  "  is  always  looked  upon  by  a  court  of  justice 
with  suspicion."  "The  maxim,"  it  is  said  in  another, 
"  has  been  a  most  effective  instrument  in  the  hands  of  jus- 
tice to  punish  wrong-doers."  ^  "  Whenever  the  rights  of  a 
party  are  either  withheld  or  violated,  the  presumption  of 
law  is  that  damage  has  been  sustained."*  Presumptions 
between  a  wrong-doer  and  a  person  wronged  should  be 
made  in  favor  of  the  latter.^ 

Illustrations. 

A. 

I.  A  chimney-sweep  finding  a  jewel  takes  it  to  a  goldsmith  to  learn  its 
value.  The  tradesman  pretends  that  it  is  worth  but  three  pence,  when 
the  sweep  demanding  it  back,  he  returns  the  empty  socket  without  the 
stone.     In  an  action  of  trover  by  the  sweep  against  the  smith,  there  is 


1  Black,  J.,  ia  Bryant  v.  Stillwell,  24  Pa.  St.  314  (1855). 

2  Little  V.  Marsh,  2  Ired.  Eq.  23  (1841). 

3  IIcslop  V.  Hcslop,  82  Pa.  St.  53  (1876) ;  Loomis,  J.,  in  Harris  v.  Rosenberg,  43 
Conn,  227  (1875).  "If  tlie  jury  should  be  convinced  of  the  spoliation,  it  would  be 
tho;rduty  to  infer  anyihingin  favor  of  the  deed  as  against  the  spoiler.  Diehl  v. 
Emig,  G5  Pa.  St.  328  (1870.) 

*  Tedder  v.  Stiles,  IG  Ga.  2  (1854). 

6  Costigan  V.  Mohawk,  etc.,  K.  Co.,  2  Dcnio,  600;  43  Am.  Dec.  758  (1846) ;  Stewart 
r.  Preston,  1  Fla.  10;  44  Am.  Dec.  621  (1846) ;  Jackson  v.  Miller,  6  Wend.  223;  21  Am. 
Dec.  3ia  (1830) ;  Snyder  v.  Ililey,  6  Pa.  St.  164;  47  Am.  Dec.  452  (1847). 


1 


RULE    2i,]       TRESUMPTIOX    AGAIXST    A    SPOLIATOR.  Ill 

no  evidence  of  the  value  of  the  stone.    The  law  presumes  that  it  was  a 
jewel  of  the  finest  water,  of  the  size  of  the  socket.' 

II.  Certain  jewellers  had  lost  from  their  sliop  a  valuable  diamond 
necklace  consisting  of  fifty-six  brilliants.  Thirty  of  the  stones,  which 
formed  the  Bides  of  the  necklace,  together  with  the  large  diamond  which 
was  in  its  center,  were  traced  to  the  possession  of  the  defendant,  and  he 
gave  contradictory  accounts  as  to  how  ho  had  obtained  them.  In  an 
action  of  trover  for  the  value  of  the  whole  necklace,  the  jury  may  pre- 
sume that  the  whole  necklace  had  been  iu  the  defendant's  po.-scssiou.^ 

III.  The  plaintiff  and  the  defendant  having  married  two  daughters  of 
one  S.,  upon  his  decease  some  loose  papers  that  concerned  the  accounts 
between  the  defendant  and  S.,  were  put  up  in  a  bundle,  tied  with  a  tape, 
sealed  in  the  presence  of  two  persons,  and  delivered  to  him.  An  account 
being  subsequently  decreed,  the  defendant  charged  the  plaintiff  with  a 
debt  as  due  from  the  estate.  It  was  proved  that  the  defendant  had 
opened  the  bundle  and  had  so  altered  and  displaced  the  papers  that  it 
could  not  be  known  what  papers  had  been  abstracted.  The  lord  chan- 
cellor disallowed  his  claim,  although  satisfied,  as  the  defendant  had 
sworn,  that  all  the  papers  had  been  produced,  on  the  ground  that  in  odium 
spoliatoris  omnia  prcesumuntur .^ 

IV.  A  widow  before  her  marriage  with  her  second  husband  assigned 
over  an  estate  of  the  alleged  value  of  £800  to  trustees  in  trust,  for  her 
children  by  her  first  husband.  The  second  husband  having  obtained 
possession  of  the  deed  and  suppressed  it,  was  ordered  to  pay  over  £800 
instead  of  an  account  of  the  value  being  directed  to  be  taken.* 

V.  A.  is  prevented  by  the  acts  of  B.  from  showing  the  quality  of  wool 
for  the  taking  of  which  he  had  brought  suit.  B.  is  liable  for  the  value  of 
the  best  quality  of  such  goods.* 

VI.  A  deed  limiting  a  term  is  burnt  by  the  defendant,  who  contends 
that  the  limitation  is  void.  Since  tlie  term  might  be  limit<>d  so  as  to 
legally  take  effect,  the  presumption  is  that  it  was  so  limited. ^ 


1  Armory  i-.  Del.amirie,  1  Smith  L.  C.  .3."i7;  or  in  the  words  of  the  poet: 
"  And  seeing  by  this  wickedness  the  stoiic 
Was  made  away  and  his  worth  known   to  none 
Craftsmen  there  came  to  show  by  wciglit  and  tale 
What  gems  of  best  an<l  uttermost  avail 
Might  in  the  compass  of  that  ring  be  laid 
With  no  less  damage  it  should  be  paid 
For  wliatman  hidcth  truth  in  wrong-doing, 
Against  him  the  law  dcemeth  everything." 

—  [Leading  Cases  Done  into  English,  Londor,  1ST6. 

*  Mortimer  r.  Craddock,  17  Jur.  4,5. 

3  Wardour  i'.  Dcrcsford,  1  Veru.  452  (16'^7). 

*  Hunt  f.  Matthews,  1  Vcrn.  -lOS  (ICSO). 
f  r.ailoy  r.  Shaw,  24  N.  If.  :'00  (IS.il). 

*  Dalston  w.  Coatsworth,  1  P.  Wms.  731  (1T21). 


142  PRESUMmVE    EVIDENCE.  [RULE    24. 

YII.  A  vendor  of  real  estate  seeks  to  avoid  the  enforcement  of  his 
contract  to  convey  on  the  ground  that  by  its  terms,  time  Avas  of  the 
essence  thereof,  and  bound  the  vendee  to  pay  the  purchase-money  at  a 
specified  time  or  forfeit  his  rights.  Tlie  vendee  denies  this.  The  fact 
that  tlie  vendor  destroyed  the  contract  after  being  delivered  to  him  by 
his  agent  with  whom  it  was  deposited,  and  while  the  vendee  was  seeking 
a  deed  from  him,  raises  the  presumption  that  the  contract  did  not  con- 
tain such  stipulations.^ 

VIII.  Goods  in  a  store  are  carried  off  and  sold  by  a  purchaser  with 
full  knowledge  that  they  had  previously  been  mortgaged.  The  burden 
of  showing  what  proportion  of  the  whole  quantity  taken  was  covered  by 
the  mortgage  is  cast  on  him,  and  he  is  compelled  to  bear  any  loss  arising 
from  the  impossibility  of  ascertaining  the  exact  quantity.* 

IX.  The  obligor  of  a  bond  has  obtained  possession  of  it  and  destroyed 
it.     It  will  be  presumed  to  have  been  given  for  a  valuable  consideration.^ 

X.  The  evidences  of  payment  made  to  him  upon  a  purchase  of  land 
are  destroyed  by  a  party.  Every  presumption  will  be  against  him,  and  if 
he  offers  to  convey  upon  the  payment  of  a  given  sum,  at  the  time  of  such 
destruction,  the  court  will  be  fully  warranted  in  finding  that  no  more 
than  such  sum  was  due  after  deducting  such  payments.* 

XI.  The  defendant,  in  1848,  executed  and  delivered  a  deed  of  land  to 
the  guardian  of  one  M.,  which  was  never  recorded.  In  1875  the  deed 
could  not  be  found.  The  defendant  testified  that  it  conveyed  only  five 
acres  of  land;  that  the  guardian,  who  had  in  the  meantime  died,  took 
the  deed  away  with  him,  and  that  he  had  not  seen  it  since.  But  the 
weight  of  evidence  showed  that  the  deed  conveyed  forty  acres,  and  that 
after  delivery  it  was  returned  to  defendant  to  be  recorded,  and  was  by 
him  lost  or  destroyed.  If  it  were  necessary  the  presumption  omnia 
prcesumunter  contra  spoUcetorem  would  be  applied. ^ 

XII.  A.  had  caused  B.,  who  claimed  the  title  and  family  estate,  as 
heir,  to  be  kidnapped  and  sent  to  sea,  and  afterwards  endeavored  to 
have  him  convicted  on  a  false  charge  of  murder.  The  court  left  it  to  the 
jury  whether  "the  presumptions  arising  from  the  kidnaping  and  the 
prosecution  for  murder,  do  not  speak  stronger  than  a  thousand  wit- 
nesses."    They  found  in  favor  of  B.^ 

XIII.  An  action  is  brought  to  recover  of  a  steamboat  the  damages 
received  by  a  canal  boat  in  a  collision.    The  steamboat  seta  up  as  a 


1  "Warren  v.  Crew,  22  Iowa,  315   (18fi7) ;  and  see  Jackson  v.  McVcy,  18  Johns.  ?31 
(1320) ;  Kent  v.  Bottoms,  3  Jones  (Eq.),  O'J  (1850). 

2  Preston  v.  Leighton,  6  Md.  88  (1854). 

3  Carncal  v.  Day,  Litt.  Sel.  Cas.  492  (1821). 
■•  Downingr.  Plate,  90111.208  (1878). 

6  Barney  v.  Secley,  38  Wis.  381  (1875). 

e  Annesley  v.  PLarl  of  Anglesea,  17  IIow.  St.  Tr.  1430  (1743) ;  see  Winchell  v.  Ed- 
wards, 57  111.  41  (1870). 


EULE    21.]       rR^SUMFTION   AGAINST   A   SPOLIATOR.  143 

defense  the  extreme  darkness  of  the  ni;i;ht,  and  her  master  produces  a 
log  book  purporting  to  have  been  kept  by  him,  which  shows  this.  In 
reljuttal  evidence  is  introduced  to  show  that  the  log  book  is  false,  and 
had  been  written  up  for  the  purpose  of  the  case.  This  raises  a  pre- 
sumption against  the  defendant.' 

XIV.  An  action  had  been  brought  by  A.  and  his  wife  for  injuries  sus- 
tained by  the  latter  through  B.'s  negligence.  Ou  the  trial,  one  W, 
testifled  that  he,  A.,  and  C,  a  clerk  of  A.'s  attorney,  were  together  at 
A.'s  house,  when  A.  said  that  if  "W.  would  give  evidence  as  to  the  acci- 
dent he  should  share  the  verdict;  A.  knew  that  W.  was  not  present  at 
the  accident,  and  C.  said  if  W.  would  not  testify,  he,  C,  would  get  other 
witnesses.  Two  other  witnesses  testified  to  similar  proposals  made  to 
them  by  C,  but  not  in  A.'s  presence,  to  give  false  evidence.  A.  was  not 
present  at  the  accident,  and  neither  he  nor  C.  had  been  called  as  wit- 
nesses.   The  evidence  was  admissible.' 

XV.  It  is  shown  that  a  sealed  certificate,  which  if  genuine  should 
have  a  genuine  seal,  is  stamped  with  a  false  one.  This  raises  a  very 
sti'oug  presumption  that  the  signature  is  false. ^ 

XVI.  In  an  account  book  of  one  M.,  offered  in  evidence,  there  was 
this  entry:  "June  30,  IS59,  P.  W.  Sterling,  credit  by  cash,  $135."  It 
appeared  that  in  October  of  that  year  M.  had  altered  this  entry  by  cross- 
ing with  ink  the  word  "  by  "  and  making  it  read  "  to,"  and  changing  the 
word  "  credit "  and  making  it  read  "  debtor,"  without  the  knowledge  or 
consent  of  Sterling.  The  pi'csumption  is  that  at  the  time  the  entry  was 
made  it  was  true,  and  that  Sterling  is  entitled  to  a  credit  of  $135.* 

"  The  jiuy  were  justified,"  said,  Tindal,  C.  J.,  "  in  case 
II.,  as  against  an  evident  wrong-doer,  in  coming  to  the 
conclusion  to  which  they  did  come.  The  case  is  I  think 
stronger  than  that  of  Armory  v.  Delamirie.^^     (Case  I.). 

In  case  XIII.,  it  was  said  :  *'  This  conckision  disposes  of 
the  case ;  for  in  a  conflict  of  evidence  such  as  the  case  pre- 
sents the  production  of  a  fabricated  log  warrants  the  rejec- 
tion of  the  testimony  which  it  is  brought  to  support.  If 
possible  it  ought  never  to  happen  that  a  case  sought  to  be 
supported  by  a  fabricated  log-book  should  succeed;  and 
while  charges  of  this  kind  are  not  to  be  listened  to  unless 
based  upon  strong  evidence,  if  they  are  supported  by  testi- 

1  The  Tillio,  7  Ben.  3S2  (1874). 

=  Moiiiirty  r.  London,  etc.,  11.  Co.,  L.  R.  5  Q.  B.  314  (1S70). 

3  Peoiilo  f.  Marion,  29  Mich.  31  (1S74) 

*  Sheils  V.  West,  17  Cal.  324  (ISCl). 


144  rEESUMPTIVE    EVIDENCE.       .  [PJJLE    24. 

mon}'  and  remain  unans^'cred  in  the  evidence,  they  com- 
pel an  adverse  decree." 

"The  conduct  of  a  party  to  a  cause,"  said  Cockburn, 
C.  J.,  in  case  XIV.,  "  may  be  of  the  highest  importance  in 
determining  whether  the  cause  of  action  in  which  he  is  phiin- 
tiff  or  the  ground  of  defense,  if  he  is  defendant,  is  honest  and 
just;  just  as  it  is  evidence  against  a  prisoner  that  he  has 
said  one  thing  at  one  time  and  another  at  another,  as  show- 
ing that  the  recourse  to  falsehood  leads  fairly  to  an  inference 
of  guilt.  Anything  from  which  such  an  inference  can  be 
drawn  is  cogent  and  important  evidence  with  a  view  to  the 
issue.  So  if  you  can  show  that  a  plaintiff  has  been  sul)- 
orning  false  testimony,  and  has  endeavored  to  have 
recourse  to  perjury,  it  is  strong  evidence  that  he  knew  per- 
fectly well  his  cause  was  an  unrighteous  one.  I  do  not  say 
that  it  is  conclusive;  I  fully  agree  that  it  should  be  put  to 
the  jury  with  the  intimation  that  it  does  not  always  follow, 
because  a  man  not  sure  he  shall  be  able  to  succeed  by 
righteous  means,  has  recourse  to  means  of  a  different  char- 
acter, that  that  which  he  desires,  namely,  the  gaining  of 
the  victory,  is  not  his  due,  or  that  he  has  not  good  ground 
for  believing  that  justice  entitles  him  to  it.  It  does 
not  necessarily  follow  that  he  has  not  a  good  cause  of 
action,  any  more  than  a  person's  making  a  false  statement 
to  increase  his  appearance  of  innocence  is  necessarily  a 
proof  of  his  guilt ;  but  it  is  always  evidence  which  ought 
to  be  submitted  to  the  consideration  of  the  tribunal  which 
has  to  judge  of  the  facts." 

The  maxim  is  an  old  rule  of  the  court  of  chancery.^ 
*' "Where  deeds  or  writings  are  suppressed,"  it  was  said  as 
early  as  1C)77  ^^  omnia prcesumunfiir,  etc.,  and  he  who  has 
committed  iniquity  shall  not  have  equity."  ^     In  equity  the 

1  Cookes  V.  Hellier,  1  Ves.  sr.  235  (1740). 

2  Gartsidc  v.  Il.ilcliff,  Chao.  Cas.  293  (Ki"").  "  The  court,"  it  was  said  in  a  North 
Carolina  case  (Ilaly burton  v.  Kershaw,  3  Dessau.  105  (1810),  "  will  go  very  far  ni 
presuming  against  those  who  destroy  papers  and  instruments  necessary  to  the 
security  or  elucidation  of  therights  of  others  inodium  spoUatoris,  as  it  is  expressed, 
even  where  the  spoliation  is  done  unadvisedly  and  not  fraudulent." 


RULE    24.]       rr.ESUMPTION   AGAINST   A   SrOLIATOU.  115 

suppression  of  documentary  evidence  always  raised  the 
presumption  that  it  would,  if  produced,  show  something 
unfavorable  to  the  party  withholding  it.^  And  where  a 
defendant  swore  that  he  had  burnt  a  deed,  but  afterwards 
produced  it,  he  was  compelled  to  admit  it  as  laid  in  the 
bill.^  And  in  chancery,  although  the  court  would  not  decree 
on  the  testimony  of  a  sino^le  witness  against  the  express 
denial  on  oath  of  the  defendant,  yet  where  the  written 
evidence  had  been  destroyed  by  the  defendant  ^;ea(7e?i^e  lite, 
the  court  would  assume  that  if  forthcoming,  it  would  have 
proved  the  statement  of  the  single  witness.^  If  a  woman 
about  to  marry,  parts  with  part  of  her  property  or  gives 
a  security  or  assessment  without  the  knowledge  of  her 
intended  husband,  this  is  a  fraud  on  his  rights  which  equity 
will  relieve.*  But  a  debt  contracted  for  valuable  consider- 
ation is  not  within  this  rule.  Nevertheless  where  a  husband 
failed  to  set  aside  a  bond  given  for  a  valuable  consideration 
by  his  "wife  before  his  marriage,  the  chancellor  on  the 
ground  of  the  concealment  from  the  husband  thought  it  a 
proper  case  to  refuse  costs  against  him.^  So  a  court  of 
equity  will  entertain  jurisdiction  on  complainant's  oath  of  a 
trespass  done  secretly  and  hard  to  be  proved,  as  the  digging 
of  one  man  underground  into  another's  minerals,®  or  the 
trading  of  an  interloper  to  the  West  Indies  in  violation  of 
another's  charter.'  So  w'here  bailiffs  who  had  served  an  ex- 
ecution found  hidden  in  the  barn  a  sum  of  money  which 
they  carried  away,  the  oath  of  a  party  injured  was  held 
sufficient  to  charge  the  spoliators,^  and  so  where  a  person 
ran  away  with  a  casket  of  jewels  belonging  to  another.^ 


i  Owen  V.  Flack,  2  Sim.  &  Stu.  606  (lS-:6). 

2  Sausam  r.  Uarasay,  2  Veru.  561  (1706) ;  Ilanipdeu  v.  Hampden,  1  Erown  P.  C. 
250. 

«  Gray  t'.  flaig,  20  Beav.  219. 

*  Lady  Strathmoie  v.  Bowes,  1  Ves.  22. 

<>  Blanchct  i:  Foster,  2  Ves.  sr.  205  (1751). 

e  East  India  Co.  v.  Sandys,  1  Vern.  127  (16S2). 

'  Jd. ;  East  India  Co.  v.  Evans,  1  ^■el•n.  303  (1084). 

8  Childrciis  v.  Saxby,  1  Vern.  207  (1CS3). 

«  East  India  Co.  v.  Evans,  1  Vern.  SOS  (16S4). 

10 


11(3  TEESOIPTIVE   EVIDENCE.  [rULE    24. 

In  an  anonymous  case  in  Lord  R<iymond,^  it  was  said  by 
Chief  Justice  Holt,  that  if  a  man  destroy  a  thing  that  is 
desifi'ned  to  be  evidence  ao^ainst  himself  a  small  matter  will 
supply  it,  and  the  defendant  having  torn  up  his  own  note 
signed  by  himself,  a  sworn  copy  was  admitted  to  be  good 
evidence  to  prove  it.  In  King  v.  Arundel,^  it  was  held 
that  where  title  deeds  are  suspected  to  have  been  suppressed 
or  withholden  by  the  defendants  or  those  under  whom  they 
claim,  the  court  of  chancery  will  decree  that  the  plaintiff 
shall  hold  the  lands  until  the  deeds  are  produced.^  In 
Leeds  v.  Cook,^  where  a  letter  had  been  written  by  the 
plaintiff  to  a  witness  and  the  latter  had  been  served  with  a 
suhpcena  duces  tecum  to  produce  it,  but  the  plaintiff  had 
previously  procured  it  from  the  witness,  and  refused  to  pro- 
duce it,  it  was  held  that  parol  evidence  of  its  contents  was 
admissible.  It  was  objected  that  the  plaintiff  had  received 
no  notice  to  produce  it.  Bat  Lord  Ellenborough  said: 
"  It  belonged  to  the  witness  called,  and  was  subtracted  in 
fraud  of  the  subpoena,  as  therefore,  the  plaintiff  secreted  it, 
and  refused  to  procure  it,  in  odium  spoliatoris  parol  evi- 
dence of  its  contents  should  be  admitted."  Other 
instances  of  the  application  of  the  maxim  are  to  be  found 
in  the  mercantile  law,  in  the  rule  that  where  a  drawee  of  a 
bill  of  exchange  destroys  a  draft  presented  to  him  for 
acceptance  he  is  liable  thereon  as  if  he  had  accepted  it ;  ^ 
and  the  principle  that  a  person  who  wrongfully  takes  or  con- 
verts a  note  to  his  own  use  by  negotiating  it  is  liable  for  its 
full  value.® 

In  an  action  of  ejectment  by  the  heir  against  a  devisee, 
the  testator's  competency  was  disputed.  The  defendant, 
after  proving  that  the  testator  had  given  a  reasonable 
account  of  the  real   property  left  to    him   by  his   father, 

1  Rep.  731. 

2  Hob.  109,  Dalston  v.  Coatsworth,  1  P.  Wms.  130  (1721). 

8  See  in  explanation  of  this  case,  Cowper  v.  Cowper,  2  P.  Wms.  749. 

*  4    Esp.  250  (1803). 

6  Jenne  v.  Ward,  2  Stark.  327  (1819). 

«  Decider  v.  Matthews,  12  N.  Y.  313  (1855). 


RULE    2-i.]       rRESUMmON    AGAIXST   A    SPOLIATOR.  1^7 

offered  in  confirmation  thcix'of  to  put  in  his  fiithcr's  will, 
which  was  in  court.  The  plaintiff  objected  to  its  admission 
and  it  was  withdrawn.  In  summing  up,  Cockburn,  C.  J., 
adverted  to  the  fact,  and  told  the  jury  that  they  might 
infer  from  the  plaintiffs  objecting  to  the  will  being  put  in 
that  it  was  conformable  to  the  statement  made  by  the  tes- 
tator. On  appeal  this  direction  was  approved  by  the  full 
court.     Williams,  Crowder,  and  Willes,  J.J.^ 

"Where  the  exact  contents  of  a  will  can  not  be  ascer- 
tained, if  it  has  been  destroyed  or  suppressed  by  a  person 
interested  in  opposition  thereto,  the  court  or  jury  in  odium 
spoliatoris  will  be  authorized  to  presume  many  things  as 
against  the  party  who  has  been  guilty  of  the  fraudulent 
act."^  It  has  been  held  that  where  the  question  was 
whether  a  former  will  had  been  revoked  by  a  will  made 
subsequently,  the  contents  of  which  it  was  alleged  differed 
from  those  of  the  former  will  (the  later  will  not  being  pro- 
duced the  exact  difference  did  not  appear)  evidence  of  spo- 
liation on  the  part  of  the  claimant  under  the  former  will, 
would  raise  the  presumption  that  it  had  been  revoked  by 
the  later  will.^  In  Jones  v.  Murphy'^  it  was  said:  "If, 
therefore,  on  another  trial,  the  ]Mvy  should  find  tha  factum 
of  a  subsequent  will,  and  that  this  will  was  destroyed  or 
withheld  by  fraud,  they  may,  and,  as  I  conceive,  are  bound 
to  infer  that  the  second  will  contained  inconsistent  disposi- 
tions with  the  first;  nay,  more  in  odium  spoliatoris^  that 
the  second  will  contained  a  clause  expressly  revoking  all 
former  wills.  In  point  of  law  it  must  be  regarded  as  a  will 
subsisting  at  the  death  of  the  testator,  so  as  to  operate  as 
a  revocation  of  all  former  devises.  It  is  far  better  that 
there  should  be  an  intestacy  than  that  a  spoliator  should  be 
rewarded  for  his  dishonest  v."     Where  a  letter  which,  it 


1  Sutton  V.  Davenport,  27  L.  J.  (0.  P.)  51  ;1S5). 
-  Betts  V.  Jackson,  0  Wend.  173  (1830). 
»  Ilarwood  r.  Goodright,  Cowp.  91  (1774). 
*  8  W.  &S.  301  (1844). 


14 S  PRESUMPTIVE   EVIDENCE.  [jlULE    24. 

was  claimed  ■was  part  of  a  will,  was  destroyed  by  the  uni- 
versal legatee,  the  maxim  was  applied.^ 


I.  A.,  a  trustee,  fails  to  preserve  his  vouchers  for  disbursements  and 
expenses.     The  presumption  is  against  A.'s  claim. ^ 

II.  A  confidential  agent  who  is  bound  to  keep  regular  accounts  neg- 
lected to  do  so,  and  to  preserve  vouchers  against  himself,  though  he  has 
preserved  those  in  his  favor.  He  is  not  permitted  in  equity  to  recover 
for  his  charges  as  solicitor.^ 

III.  The  agent  of  a  candidate  for  Parliament  has  destroyed  the  accounts 
and  records  of  a  contested  election.  The  candidate  being  the  respond- 
ent in  the  proceedings,  the  strongest  conclusions  will  be  drawn  against 
him,  and  every  presumption  made  against  the  legality  of  the  acts  con- 
cealed by  such  conduct.** 

IV.  In  an  action  on  the  bonds  of  a  corporation  it  is  denied  that  the 
corporation  was  properly  organized.  A  minute  book,  offered  in  evidence 
to  show  its  oi'gauizatiou,  and  the  regularity  of  the  issue  of  the  bonds 
disappears  pendente  lite.  It  is  traced  into  the  hands  of  the  ofGcers  of  the 
alleged  corporation,  but  its  whereabouts  is  not  shown.  The  presump- 
tion is  that  it  has  been  concealed  because  of  the  evidence  which  it  would 
show  of  the  legality  of  the  organization  and  the  validity  of  the  bonds.* 

V.  A  trustee  destroys  a  trust  instrument.  The  presumption  is  that  it 
contained  matters  prejudicial  to  his  interest.^ 

YI.  In  the  settlement  of  a  partnership  the  partner  who  made  the  pur- 
chases being  called  on  to  produce  the  original  invoices,  pi-oduces  some, 
but  not  all;  those  produced  show  overcharges.  The  presumption  is  that 
the  others  if  produced  would  have  shown  similar  overcharges.' 

The  duty  of  a  trustee  or  of  an  agent  in  charge  of  prop- 
erty to  keep  regular  and  correct  accounts  is  imperative.  If 
he  does  not  every  presumption  of  fact  is  against  him.  He 
can  not  impose  upon  his  principal  or  cestui  que  trust  the 

1  Lucas  V.  Brooks,  23  La.  Ann.  117  (1871). 

2  Landis  V.  Scott,  32  Pa.  St.  498  (18.5'.)). 

3  White  V.  Lincohi,  8  Ves.  263  (1803). 

*  Hunter  v.  Lauder,  8  Canada  L,  J.  (n.  S.)  17  (1S72). 

6  Rigg3  V.  Pennsylvania  11.  Co.,  16  Fed.  llep.  8U4  (1883). 

6  Jones  V.  Knauss,  31  N.  J.  (Eq.)  609  (1879). 

'  Bush  r.  Guiou,  6La.  Ann.797  (1851).  For  a  recent  application  of  the  maxim 
where  in  a  contest  between  i)artners  it  was  thown  that  one  partner  had  suppressed 
and  destroyed  evidence,  see  Pomeroy  v.  Beuton,  77  Mo.  64  (1SS2). 


RULE    24.]       niESUMrTION    AGAINST   A    SrOLIATOR.  119 

obligation  to  prove  that  ho  has  actually  n^ceived  what  he 
mio'ht  have  received,  and  what  it  was  his  duty  to  endeavor 
to  obtain.  By  failinj^  to  keep  and  submit  accounts,  he 
assumes  the  burden  of  repelling  the  presumption  and  dis- 
proving negligence  and  faithlessness."  ^ 

"  If,"  said  Nixon,  J.,  in  case  IV.,  "I  was  obliged  to 
put  the  ultimate  determination  of  the  suit  upon  these  ques- 
tions, I  should  draw  unfavorable  inferences  from  the  con- 
duct of  the  officials  of  the  company  in  regard  to  the  book, 
and  should  be  quite  willing  to  assume  that  it  had  been  put 
out  of  the  way  because  it  contained  proof  of  material  facts 
which  the  defendant  corporation  was  anxious  to  suppress." 

In  case  V.  it  was  said :  "  His  position  is  one  where  he  is 
liable  to  the  most  unfavorable  presumptions.  He  has 
unquestionably  betrayed  his  trust,  and  the  court  is  bound 
to  apply  to  him  the  maxim  in  odium  spoliatoris  omnia 
prcesumuntur.  If  a  person  is  proved  to  have  destroyed  a 
written  instrument,  a  presumption  arises  that  if  the  truth 
had  appeared,  it  would  have  been  against  his  interest,  and 
that  his  conduct  is  attributable  to  his  knowledge  of  this 
circumstance,  and  accordingly  slight  evidence  of  the  con- 
tents of  the  instrument  will  usually  in  such  a  case  be  suffi- 
cient." 

If  a  party  having  charge  of  the  property  of  others  so 
confounds  it  with  his  own  that  the  line  of  distinction  can  not 
be  traced,  all  the  inconvenience  of  the  confusion  is  thrown 
upon  the  party  who  produces  it,  and  it  is  for  him  to  dis- 
tinguish his  own  property  or  lose  it.  If  it  be  a  case  of 
damages,  damages  are  given  to  the  utmost  value  that  the 
article  will  bear."^  So  a  party  wilfully  mixing  his  goods 
with  those  of  another  person  is  bound  to  prove  which  are 
his.' 


1  Landis  v.  Scott,  32  Pa.  St.  498  (1859). 

•■>  Hart  V.  Ten  Eyck,  2  Johns.  Ch.  103  (ISIG) ;  Ryder  v.  Hathaway,  21  Pick.  293 
(183S). 

3  Loorais  r.  Green,  7  Me.  3S6  (1S31).  Several  cows  belonging  to  different  owners 
break  into  a  private  ganlcu  and  di>  damage.  The  presumption  is  that  each  cow  did 
an  equal  amount  of  damage.    Parteuheimert-.  Van  Order,  20  Barb.  479  (1855). 


150  PRESUilPTIYE    EVIDENCE.  [RULE    24. 

In  international  law  the  princi[)le  of  the  maxim  is  carried 
very  far.  "  It  is  certain,"  said  Sir  William  Scott  in  TJie 
Hunter y^  "  that  by  the  law  of  every  maritime  court  of 
Europe,  spoliation  of  papers  not  only  excludes  further 
proof,  but  does  per  se,  infer  condemnation,  founding  a 
presumption  Juris  et  de  jure,  that  it  was  done  for  the  pur- 
posed of  fraudulently  suppressing  evidence  which  if  pro- 
duced would  lead  to  the  same  result ;  and  this  surely  not 
without  reason,  although  the  leniency  of  our  code  has  not 
adopted  the  rule  in  its  full  vif^or,  but  has  modified  it  to 
this  extent  that  if  all  other  circumstances  are  clear,  this 
circumstance  alone  shall  not  be  damnatory,  particularly  if 
the  act  were  done  by  a  person  who  has  interests  of  his  own 
that  might  be  benefited  by  the  commission  of  this  injurious 
act.  But  though  it  does  not  found  an  absolute  presumption 
juris  et  de  jure,  it  only  stops  short  of  that,  for  it  certainly 
generates  a  most  unfavorable  presumption.  A  case  which 
escapes  with  such  a  brand  upon  it,  is  only  saved  so  as  by 
fire.  There  must  be  that  overwhelming  proof  arising  from 
the  concurrence  of  every  other  circumstance  in  its  favor, 
that  forces  a  conviction  of  its  truth  in  spite  of  the  powerful 
impression  which  such  an  act  makes  to  its  entire  reproba- 
tion." In  the  subsequent  case  of  TJie  Johanna  Emelie^ 
Dr.  Lushington  stated  the  rule  in  the  English  admiralty 
courts  more  particularly.  "It  has  been  said,"  said  he, 
*'  that  the  master  is  entirely  discredited  by  various  circum- 
stances and  the  fact  principally  relied  on  in  the  circumstance 
of  his  having  denied  that  there  was  any  spoliation  of 
papers.  I  must  say  a  word  as  to  the  spoliation  of  papers 
generally  before  I  apply  myself  to  the  fact.  I  do  not  know 
that  there  is  to  be  found  in  any  of  Lord  Stowell's  judg- 
ments any  direct  definition  of  the  word  **  spoliation."  I 
am  of  opinion  that  the  mere  destruction  of  papers  is  not 
under  all  circumstances  to  be  considered  a  spoliation ;  I  say 
under  all  circumstances,  because  it  might  be  carried  to  a 

1  1  Dods.  Aam.  430  (1815).  s  18  Jur.  703  (1855). 


RULE    24.]      rRESUJIPTION   AGAINST   A   SrOLIATOR  Ijl 

very  absurd  length.  I  apprehend  it  mi^ht  be  said,  if  at  any 
time  during  a  long  voyage  the  master  destroyed  papers  that 
had  no  relevancy  to  it  relating  to  a  former  voyage,  the 
matter  would  not  be  put  in  issue.  To  say  that  was  a  spolia- 
tion of  papers  would  be  going  the  length  of  sayino'  that 
nothing  in  the  nature  even  of  a  private  letter  was  to  be 
destroyed  after  the  vessel  had  left  her  port.  I  am  not, 
however,  disposed  to  relax  the  practical  effect  of  the  rules 
laid  down  by  Lord  Stowell,  because  they  are  consistent 
with  good  sense,  and  with  justice  to  all  parties;  but  they 
must  not  be  pressed  beyond  his  true  intention  with  refer- 
ence to  all  the  facts  of  the  case.^  *  *  *  jjj  jy^g  Eising 
Sun,^  Lord  Stowell  lays  down  the  doctrine  that  spoliation 
does  not  enure  to  condemnation ;  with  other  suspicious  cir- 
cumstances, it  shuts  the  door  against  further  proof.  To 
that  doctrine  I  entirely  assent."  The  English  and  not  the 
continental  rule^  is  the  law  of  the  United  States.  «'  Con- 
cealment or  even  spoliation  of  papers,"  said  Mr.  Justice 
Story  in  The  Pizan^o,^  "  is  not  of  itself  a  sufficient  ground 
for  condemnation  in  a  prize  court.  It  is  undoubtedly  a 
very  awakening  circumstance,  calculated  to  excite  the  vio^i- 
lance  and  justify  the  suspicions  of  the  court.  But  it  is  a 
circumstance  open  to  explanation,  for  it  may  have  arisen 
from  accident,  necessity  or  superior  force  ;  and  if  the  party 
in  the  first  instance  fairly  and  frankly  explains  it  to  the 
satisfaction  of  the  court,  it  deprives  him  of  no  right  to 
which  he  is  otherwise  entitled.  If,  on  the  other  hand,  the 
spoliation  be  unexplained,  or  the  explanation  appear  weak 
and  futile;  if  the  cause  labor  under  heavy  suspicions,  or 
there  be  a  vehement  presumption  of  bad  faith  or  gross  pre- 
varication, it  is  made  the  ground  of  the  denial  of  further 
proof,  and  condemnation  ensues  from  defects  in  the  evi- 
dence which  the  party  is  not  permitted  to  supply." 

>  Citing  The  Hunter,  1  Dods.  Adm.  430;  The  Two  Brothers,  1  Rob.  Adm.  131;  The 
Poll)-,  2  Hob.  Adm.  361. 
=  2  Rob.  Adm.  104. 
'  Sec  note  2  Wheat.  24i. 
*  2  Wheat.  241  (1S17). 


152  PRESUMPTIVE   EVIDENCE.  [rULE    25. 

RULiE  25.  —  The  fact  of  spoliation  standing  alone  may 
defeat  a  claim,  but  of  itself  can  not  sustain  a  claim. 

Where  the  spoliator  is  the  claimant,  the  fact  of  spoliation 
alo7ie  raises  a  presumption  against  his  claim.  Thus  in 
Asl'eio  V.  OdenJieimer^  it  was  said:  "We  may  take  the 
rules  of  evidence  to  be  well  established  that  where  a  deed, 
a  will,  or  other  paper  is  proved  to  be  destroyed  or  sup- 
pressed, or  there  is  vehement  suspicion  of  its  having  been 
done,  the  presumption  in  ocUitm  sjioUatoris  applies  in  favor 
of  the  party  who  claims  under  such  paper,  though  the  con- 
tents are  not  proved.  The  fact  of  spoliation,  suppression, 
or  embezzlement  may  be  proved  by  the  answer  or  oath  of 
the  opposite  party.  So  may  the  contents  of  the  paper;  the 
same  rule  applies  to  matters  of  account ;  the  mere  embez- 
zlement of  books  of  account  is  sufficient  to  authorize  a 
rejection  of  claims  by  the  spoiler  though  supported  by  evi- 
dence, or  the  party  spoiled  may  rebut  the  claim  by  his 
oath." 

But  where  it  is  sought  to  charge  the  spoliator,  some  evi- 
dence besides  the  mere  fact  of  spoliation  is  necessary  ;  in 
other  words,  the  suppression  or  destruction  of  the  evidence 
does  not  relieve  the  opposite  party  from  the  burden  of 
proving  his  own  case.^  "  I  do  not  remember  or  believe," 
said  the  ]\Iaster  of  the  Rolls  in  Cowper  v.  Cowper,^  "  that 
there  has  been  any  case  where  there  was  not  some  proof 
made  of  the  existence  of  the  deed  or  writing  supposed  to 
be  suppressed  or  destroyed."  "All  cases  for  relief  against 
spoliation  come,"  said  Lord  Hardwicke,  in  Saltern  v.  Mel- 
Tiursli,^  *'  in  a  favorable  light,  but  notwithstanding  the  rule 
that  things  are  to  bo  taken  in  odium  spoliatoris^  yet  it 
ought  to  have  no  other  consequence  but  this,  that  where  the 
contents  of  the  deed  destroyed  are  proved,  the  party  shall 
have  the  same  benefit  as  he  would  if  the  deed  itself  was  pro- 

1  1  Bald.  390  (n83). 

2  Bott  V.  Wood,  56  Miss.  136  (1878), 
s  2  P.  Wms.  748  (1734). 

*  Amb.  248  (1754). 


RULE    25.]       PRESUMPTION"   AGAINST   A   SPOLIATOR.  153 

duccd."  Ill  Askeio  v.  Odenheimer^  it  was  .said:  "But 
■when  ho  comes  to  charge  the  spoiler  in  account,  in  order  to 
raise  a  debt  against  hira,  he  must  give  some  evidence 
beyond  the  fact  of  spoliation,  his  oath  would  be  admissible 
in  evidence,  its  effect  depending  on  the  circumstances  of 
the  case.  If  he  relics  on  other  evidence  he  must  make  out 
a  prima  facie  case  by  proof  competent  for  a  court  of  equity 
to  presume  a  court  of  law  to  give  a  judgment  on  a  demurrer 
to  the  evidence,  or  a  jury  to  find  a  verdict  in  favor  of  the 
charge  set  up.  This  is  what  is  understood  by  some  evidence^ 
it  may  be  slight,  j'ct  if  it  conduces  to  prove  the  charge  it  is 
legally  sufEciont,  its  weight  or  credibility  is  a  matter  of  dis- 
cretion and  circumstance.  No  specific  sum  can  be  charged 
aijainst  the  spoiler  on  proof  of  the  mere  fact  of  spoliation; 
herein  the  rule  differs  from  that  which  applies  to  a  claim  of 
property  under  a  deed  or  will  on  which  the  right  depends 
and  the  thing  claimed  is  ascertained."  ^  This  doctrine  has 
been  considered  at  greater  length  under  a  previous  rule 
(Rule  23),  in  discussing  the  presumption  arising  from  the 
withholding  of  evidence. 

In  Bott  V.  Wood^  the  court  say  :  '*  The  principle  of  the 
maxim  omnia  prcesumuntur  in  odium  spolialoris,  as  applic- 
able to  the  destruction  or  suppression  of  a  written  instru- 
ment is  that  such  destruction  or  suppression  raises  a 
presumption  that  the  document  would  if  produced  militate 
against  the  party  destroying  or  suppressing  it,  and  that  his 
conduct  is  attributable  to  this  circumstance,  and  therefore 
slight  evidence  of  the  contents  of  the  instrument  will 
usually  in  such  a  case  be  sufficient.  There  is  great  danger 
that  the  maxim  may  be  carried  too  far.  It  can  not  prop- 
erly be  pushed  to  the  extent  of  dispensing  with  the  neces- 
sity of  other  evidence  and  should  be  regarded  as  mere 
matter  of  inference,  in  weighing  the  effect  of  evidence  in 
its  own  nature  applicable  to  the  subject  in  dispute." 


1  Supra. 

-  Askew  V.  Odenhcimcr,  1  Bald.  SCO  (1S31). 

S5G  Miss.  130  (1S7»). 


15-1  rr.ESUMPTivE  evidence.  [eule  26. 

RULE  2G.  — But  t!ie  preswmption  in  disfa\'or  of  a  spol- 
iator does  not  arise  where  the  document  concealed 
or  destroyed  is  otherwise  proved  in  the  case  (A)  or 
the  spoliation  is  open  and  for  cause  (B). 

Ilhistration. 

A. 

I.  The  contents  of  a  paper  arc  proved  by  witnesses.  The  paper  is 
withheld  by  the  custodian.     No  presumption  arises  against  him. 

In  JSoU  V.  Wood, ^  it  was  said:  "The  doctrine  is  that 
unfavorable  presumption  and  intendment  shall  be  against 
the  party  who  has  destroyed  an  instrument  which  is  the 
subject  of  inquiry  in  order  that  he  may  not  gain  by  the 
wrong.  But  where  there  is  express  and  positive  evidence, 
there  is  no  place  for  presumption  or  inference.  It  is  only 
in  reference  to  the  contents  of  a  paper  destroyed  or  with- 
held that  the  maxim  can  have  application,  and  where  the 
contents  are  proved  there  is  no  occasion  for  resort  to  the 
maxim.  In  this  case,  if  the  evidence  of  B.  was  sufficient 
to  satisfy  the  jury  as  to  the  terms  of  the  will  in  dispute,  a 
resort  to  the  maxim  under  consideration  was  unnecessary." 

B. 

1.  In  an  action  of  ejectment  the  defendant,  John  Coyle,  claimed  under 
a  contract  to  purchase  from  Philip  Coyle  and  Mary  his  wife.  There 
was  no  evidence  that  the  contract  had  been  acknowledged  by  the  wife  as 
required  by  law;  but  it  remained  in  her  possession  until  destroyed  by 
her  in  the  presence  and  with  the  assent  of  both  her  husband  and  the 
defendant.  This  destruction  did  not  raise  the  presumption  that  it  had 
been  properly  acknowledged  by  the  spoliator.'' 

"Conceding,"  said  Lewis,  C.  J.,  in  case  I.,  "that  the 
destruction  of  the  article  was  unauthorized,  it  is  clear  that 
without  an  acknowledgment  by  Mary  Coyle  according  to 
law  it  could  have  no  legal  operation  against  her  or  her 
heirs  after  the  death  of  her  husband.     There  was  no  secret 


1  56  Miss.  136  (1878). 

»  Milteubergcr  v.  Coyle,  27  Pa.  St.  170  (1856). 


I 


RULE    2G.]       PRESUMPTIOX   AGAINST   A   SPOLIATOR.  IjO 

act  of  spoliation.  All  parties  in  interest  were  present  and 
John  Coylo  was  sent  for  specially  on  the  occasion.  His 
acquiescence  may  be  inferred  from  his  omission  to  make 
opposition  by  word  or  deed.  There  is,  therefore,  nothing 
to  authorize  a  presumption  that  the  article  had  been 
acknowledored  by  Mary  Coyle  separate  and  apart  from  her 
husband." 

The  presumption  does  not  extend  beyond  the  thing  taken 
or  suppressed.  In  Harris  v.  Rosenberg,^  the  defendants 
entered  the  store  of  the  plaintiff  and  carried  off  a  quantity 
of  different  kinds  of  goods.  The  proof  not  being  definite 
as  to  the  quantity  and  value  of  the  goods  taken,  the  trial 
court  ruled  that  the  largest  quantity  and  the  highest  value 
were  to  be  taken  as  the  true  measure.  On  appeal,  this 
was  held  erroneous.  *'As  we  construe  the  finding,"  said 
Loomis,  J.,  **  in  connection  with  the  fact  that  judgment  was 
rendered  for  all  the  plaintiff  demanded  in  his  writ,  the  prin- 
ciple of  presuming  the  highest  value  and  the  largest  quantity 
docs  not  seem  to  have  been  limited  to  the  precise  thing  or 
things  otherwise  proved  to  have  been  taken.  *  *  *  A 
proper  application  of  the  rule  to  the  case  at  bar  may 
be  illustrated  as  follows :  If  it  was  proved  that  the 
defendants  took  a  piece  of  silk,  and  the  plaintiff  claimed 
that  it  was  of  the  best  quality  and  highest  price  and  con- 
tained so  many  yards,  and  the  defendant,  w^hile  denying 
the  alleged  quantity,  quality,  and  price,  would  not  produce 
it  in  court  or  allow  it  to  be  examined  and  measured,  it 
would  furnish  a  very  strong  inference  against  him  ;  but 
the  fact  of  taking  the  silk  would  not  of  itself  justify  the 
court  in  presuming  that  he  took  the  fur  caps  or  other 
things  mentioned  in  the  declaration,  and  that  they  also 
were  of  the  finest  quality  and  highest  price.  The  pre- 
sumption we  are  considering  is,  of  course,  to  be  distin- 
guished from  one  arising  from  opportunity  to  take  the 
goods,  coupled  with  other  circumstances  calculated  to  fastea 

1  43  Conn.  227  (1S75). 


15G  PEESUMPTIVE   EVIDENCE.  [llULE    26. 

the  guilt  upon  the  defendants  ;  as,  for  instance,  if  certain 
goods  were  known  to  have  been  in  the  store  just  previous 
to  the  defendants'  entry,  and  were  found  missing  soon 
after,  and  no  persons  other  than  the  defendants  and  those 
acting  with  them  were  known  to  have  entered  the  store 
without  permission  or  to  have  had  opportunity  to  take  the 
goods,  the  court  might  properly  infer  that  the  missing 
goods  went  off  by  the  same  hands  that  were  proved  to 
have  taken  a  part."  Therefore,  before  the  presumption 
can  arise  it  should  be  clearly  proved  that  the  document 
destroyed  by  the  party  was  the  one  alleged.^ 

The  presumption  of  course  is  not  conclusive.  In  Thomp- 
son V.  Tliom'pson^  the  court  instructed  the  jury  as  follows  : 
"If  the  jury  believe  from  the  evidence  that  the  plaintiff 
burnt  or  in  any  way  destroyed  any  of  the  papers  of  the 
deceased,  without  the  knowledge  and  consent  of  those  who 
were  interested  in  the  estate  of  said  deceased  it  devolves  on 
him  to  show  by  proof  other  than  his  own  statements  what 
those  papers  contained;  and  on  his  failure  to  do  so,  the 
law  raises  the  presumption  against  him  that  they  were  of 
the  highest  value  to  the  defendant  in  this  suit,  and  entitles 
her  to  a  verdict."  In  the  Supreme  Court  on  appeal  it  was 
said;  *' It  is  undoubtedly  true  that  a  party  who  destroys 
the  evidence  by  which  his  claim  or  title  may  be  impeached 
raises  a  strong  presumption  against  the  validity  of  his 
claim.  And  if  the  plaintiff  destroyed  papers  of  the  estate, 
and  especially  receipts  for  taxes,  which  are  important  docu- 
ments, involving  in  many  instances  the  validity  of  a  title,  he 
committed  a  great  wrong  ;  but  yet  the  presumption  against 
him  would  not  be  of  that  conclusive  character  indicated  by 
the  instruction.  The  jury  were  told  in  effect  that  if  the 
plaintiff  destroyed  any  papers  of  the  deceased,  the  defend- 
ant was  entitled  to  a  verdict.  The  law  of  nations  as  reco^;- 
nizcd  in  Continental  Europe,  under  certain  circumstances, 
raises  a  conclusive   presumption  against   the    spoliator  of 

1  McRcynolds  v.  McCord,  6  Watts,  288  (1837). 
s  9  lad.  323  (1857). 


EULE    27.]       PRESmirTIOX   AGAINST   A    SPOLIATOR.  lo7 

papers  indicating  the  national  character  of  a  vessel  ;  bat 
even  that  rule  docs  not  ordinarily  prevail  in  England  and  the 
United  States.  This  rule  has  no  place  in  the  courts  of 
the  common  law.  On  proof  of  the  existence  of  a  paper  the 
testimony  of  a  party  Mho  ought  to  have  the  custody  of  it 
touching  its  loss,  with  evidence  of  diligent  search  for  it  is 
addressed  to  the  court.  If  its  loss  is  established  he  is 
allowed  to  go  to  the  jury  with  evidence  of  its  contents. 
But  his  adversary  may  prove  that  he  has  withheld  or  de- 
stroyed it,  and  if  he  satisfactorily  establish  that  point, 
every  presumption  will  be  indulged  against  him  in  refer- 
ence to  its  character." 

RULE  27.  —  The  voluntary  destruction  of  a  document 
raises  prima  facie  a  presumption  of  fraud,  and  pre- 
cludes the  spoliator  from  giving  secondary  evidence 
of  its  contents,  in  the  absence  of  a  legal  excuse  for 
its  destruction. 

lllust7Xitions. 

I.  A.  sues  on  a  note  which  he  alleges  B.  gave  him,  but  which  note  he 
has  burnt  up.    A.  can  not  prove  his  alleged  debt.^ 

II.  An  action  is  brought  for  a  libel  contained  in  a  letter  written  by  B. 
to  a  woman  to  whom  J.  was  at  the  time  engaged  to  be  married.  On  the 
trial  J.  testified  that  the  day  before  his  marriage  he  burned  the  letter, 
and  had  no  copy.  He  can  not  be  allowed  to  repeat  the  contents  from 
memory.' 

III.  A  party  has  mutilated  a  paper  by  tearing  off  a  writing  attached 
to  it.     He  can  not  prove  its  contents  by  parol.^ 

In  case  I.  it  was  said:  '  "  The  proof  is  that  the  plaintiff 
deliberately  and  voluntarily  destroyed  the  Dote  before  it 
fell  due  and  there  is  nothing  in  the  case  accounting  for  or 
affording  any  explanation  of  the  act,  consistent  with  an 
honest  or  justifiable  purpose.  Such  explanation  the  plain- 
tiff was  bound  to  give  atfirmativelv,  for  it  would  be  in  viola- 


1  Blade  V.  Nol.ind,  12  Wend.  173  (1S34). 

2  Joannes  v.  Bcnuctt,  5  Allen,  IG'J  (1SG2). 

3  Price  V.  Tallmau,  1  N.  J.  (L.)  147  (1794). 


158  PRESU3IPTIVE   EVIDENCE  [rULE    27 

tion  of  all  the  principles  upon  which  inferior  and  secondary 
evidence  is  tolerated  to  allow  a  party  the  benefit  of  it 
who  has  wilfully  destroyed  the  higher  and  better  evi- 
dence. *  *  *  I  believe  no  case  is  to  be  found  where, 
if  a  party  has  deliberately  destroyed  the  higher  evidence 
without  explanation  showing  affirmatively  that  the  act  was 
done  with  pure  motives  and  repelling  every  suspicion  of  a 
fraudulent  design,  that  he  has  had  the  benefit  of  it.  To 
extend  it  to  such  a  case  would  be  to  lose  sight  of  all  the 
reasons  upon  which  the  rule  is  founded  and  to  establish  a 
dangerous  precedent.  We  know  of  no  honest  purposb  for 
which  a  party,  without  any  mistake  or  misapprehension, 
would  deliberately  destroy  the  evidence  of  an  existing  debt, 
and  we  will  not  presume  one.  From  the  necessity  and  hard- 
ship of  the  case,  courts  have  allowed  the  party  to  be  a  com- 
petent witness  to  prove  the  loss  or  destruction  of  the 
papers;  but  it  would  be  an  unreasonable  indulgence,  and  a 
violation  of  the  just  maxim,  that  no  one  shall  take  advan- 
tage of  his  own  wrong  to  permit  this  testimony  when  he 
has  designedly  destroyed  it." 

In  case  II.  it  was  said:  "This  (permitting  the  second- 
ary evidence)  we  think  a  violation  of  the  cardinal  principle 
that  where  it  appears  that  a  party  has  destroyed  an  instru- 
ment or  document  the  presumption  arises  that  if  it  had  been 
produced  it  would  have  been  against  his  interest  or  in  some 
essential  particular  unfavorable  to  his  claims  under  it. 
Contra  spoliatorem  omnia  prcBsumuntur.  In  the  absence 
of  any  proof  that  the  destruction  was  the  result  of  accident 
or  mistake  or  of  other  circumstances  rebutting  any  fraudu- 
lent purpose  or  design,  especially  where,  as  in  the  case  at 
bar,  it  appears  that  the  paper  was  voluntarily  and  design- 
edly burned  by  the  parly  who  relies  on  it  in  support  of  his 
action,  the  inference  is  that  the  purpose  of  the  party  in 
destroying  it  was  fraudulent,  and  he  is  excluded  from  offer- 
ing secondary  evidence  to  prove  the  contents  of  the  docu- 
ment which  he  has  by  his  own  act  put  out  of  existence. 
If  such  were  not  the  rule,  and  a  party  could  be  permitted 


RULE    28.]       PRESiniPTION   AGAINST   A   SPOLIATOR.  159 

to  testify  to  the  language  or  purport  of  written  papers 
which  he  had  wilfully  destroyed  in  support  of  his  right 
of  action  against  another,  great  opportunities  would  be 
afforded  for  the  commission  of  the  grossest  frauds.  A  per- 
son who  has  wilfully  destroyed  the  higher  and  better  evi- 
dence ought  not  to  be  permitted  to  enjoy  the  benefit  of  the 
rule  admitting  secondary  evidence.  lie  must  first  rebut 
tiie  inference  of  fraud  which  arises  from  the  act  of  a  vol- 
untary destruction  of  a  written  paper,  before  he  can  ask  to 
be  relieved  from  the  consequences  of  his  act  by  introduc- 
ing parol  evidence  to  prove  his  case." 

RULE  28.  —  That  the  destruction  was  the  result  of  mis- 
take, accident,  or  some  fault  not  amounting  to  a 
fraud,  furnishes  a  "legal  excuse"  within  Rule  27. 

Illustrations. 

I.  A.  receiving  the  amount  of  a  promissory  note  in  bills,  destroys  the 
paper.  He  afterwards  discovers  that  the  bills  are  forgeries.  In  an  action 
on  the  note,  A.  may  give  evidence  of  its  contents. ^ 

II.  B.  destroys  a  note  thinking  that  it  is  a  receipt.  In  an  action 
thereon  B.  may  give  secondary  evidence  of  the  contents  of  the  note.^ 

III.  T.  sues  S.  for  breach  of  promise  of  marriage.  Letters  from  S.  to 
T.  containing  the  offer  of  marriage  have  been  destroyed  by  T .  on  the 
advice  of  a  sister  that  they  would  not  be  needed.  T.  is  allowed  to  prove 
their  contents. ^ 

Formerly  secondary  evidence  of  a  document  not  pro- 
duced at  the  trial  was  allowable  only  where  the  writing  had 
been  destroyed  by  inevitable  accident,  or  was  withheld  by 
the  opposing  party.*  But  in  late  years  this  rule  has  been 
relaxed,  and  it  is  now  only  necessary  to  prove  that  his  inca- 
pacity to  produce  it  is  not  attributable  to  a  positive  fault 
involving  a  fraud. '^     The  naked  fact  of  a  voluntary  destruc- 


1  See  Riggs  v.  Tayloe,  9  Wheat.  4S7  (1S24). 

2  Id. 

3  Tobin».  Sh.nw,  45  Mo.  344  (ISoS). 

♦  Villars  r.  Villars,  2  Atk.  71.    Opinion  of  Chancellor  Lansing  in  Livingston  v. 
Rogers,  2  Johns.  Gas.  4SS  (1S02). 

*  Livingston  v.  Rogers,  Id.;  Jackson  f.  Woolsey,  10  Johns.  453  (1S14). 


IGO  PRESUMPTIVE   EVIDEXCE.  [kULE    28. 

tion  of  a  document  raises  such  a  presumption  of  fraud  as 
to  preclude  all  secondary  evidence  of  its  contents  by  the 
spoliator.^  Therefore,  one  who  has  voluntarily  destroyed 
written  evidence  will  not  be  permitted  to  give  secondary 
evidence  of  it  until  he  has  in  some  way  —  as  by  showing 
that  it  was  done  by  mistake  or  accident  —  repelled  the  infer- 
ence of  fraud  arising  from  the  destruction. 

"When  the  plaintiff,"  said  the  court  in  case  III.,  "  was 
induced  to  suppose  that  her  letters  from  the  defendant 
would  not  be  used  in  a  trial  of  a  suit  against  him  in  her 
favor,  and  she  yielded  to  the  advice  of  a  sister  in  whom  she 
had  reposed  umlimited  confidence  that  it  would  be  desirable 
that  they  should  not  be  exposed  to  the  perusal  of  those  who 
would  read  them,  in  her  opinion,  to  gratify  a  feeling  of 
curiosity,  unmingled  with  any  sympathy  for  her;  perhaps, 
too,  from  a  wish  not  to  be  reminded  by  their  existence  of 
what  she,  at  the  time  of  their  receipt,  regarded  as  a  pledge  of 
affection,  followed  by  the  unwilling  conviction,  from  his 
coldness  at  least,  so  wounding  to  her  sensibility,  that  a 
change  had  taken  place  in  him  in  regard  to  herself,  or  that 
he  was  always  untrue,  can  it  be  said  that  this  is  a  case  so 
unlike  that  when  a  loss  of  writing  has  occurred  by  accident 
or  mistake,  that  the  contents  of  such  letters  can  not  be 
shown  by  oral  testimony  when  they  have  been  destroyed. 
May  not  her  acts  in  committing  them  to  the  fire  be  treated 
as  a  misapprehension,  an  accident,  a  misfortune?  " 

Where  one  person  deprives  another  by  fraud  of  the  pos- 
session of  written  instruments  which  belong  to  him,  the 
latter  may  bring  suit  on  them,  and  may  give  secondary  evi- 
dence of  their  contents.^ 


1  Bagley  V.  McMickle,  9  Cal.  449  (185S) ;  Speer  v.  Spcer,  7  Ind.  ITS  (1855) ;  Wilson 
V.  Cassidy,  2  Ind.  502;  Parker  v.  Kane,  4  Wis.  1  (1S55)  ;  Broadwell  v.  Stiles,  8  X.  J 
(L.)  58  (1824) ;  Blake  v.  Fash,  44  111.  304  (1807) ;  Henderson  v.  Uoke,  1  Dev.  &  B.  119 
(183C). 

2  Grimes  r.  Kimball,  3  AUen,518  (1862);  Almy  v.  Reed,  10  Gush.  421;  Hedge  v 
McQuaid,  11  Gush.  352. 


PART  III 
I  ■  

*        PRESUMPTIONS  OF  CONTINUANCE 

AND  UNIFORMITY. 


11  (  IGl  ) 


I 


CHAPTER   Till. 

THE  PRESUMPTION  OF  THE  CONTINUANCE  OF  THINGS 
GENERALLY. 

RULE  29.  — Possession  or  o^VIle^ship  of  cither  realty  or 
personalty  (A),  non-possession  or  loss  (B),  debts  (C), 
and  other  conditions  of  propei'ty  or  thinjfs  (D),  once 
proved  to  exist,  are  presumed  to  continue  until  the 
contrary  is  shown. ^ 

Illustrations. 

A. 

I.  It  is  proved  that  at  a  given  time  B.  was  seized  of  certain  land. 
The  presumption  is  tliat  such  seizure  continues  and  the  burden  is  on  him 
who  alleges  a  disseisin.^ 

II.  Certain  land  is  devised  to  executors  with  power  to  sell.  If  no  con- 
veyance from  them  is  shown,  the  presumption  is  that  they  did  not  exe- 
cute the  power.' 

III.  It  is  proved  that  a  promissory  note  was  given  for  consideration  ou 
November  2,  1848.  In  an  action  brought  in  1854,  the  note  is  not  pro 
duced,  on  the  ground  that  it  is  missing  and  can  not  be  found  after  diligent 
search.  Secondary  evidence  of  the  note  may  be  given,  for  the  presump- 
tion is  that  it  still  exists  unpaid.* 

A  note  once  proved  to  have  existed,  it  was  said  in  ca.«e 
III,,  is  presumed  to  exist  still,  unless  payment  be  shown  or 


1  Gould  v.  Norfolk  Lead  Co., !)  Cush.  333  (1852) ;  Garner  v.  Green,  8  Ala.  06  (1S15) ; 
Kidder  v.  Stevens,  60  Cal.  415  (ISS-i). 

=  r.rown  V.  King,  5  Mete.  173  (_1S42) ;  and  see  Sullivan  v.  Goldman,  19  La.  Ann.  12 
(1867) ;  Leport  v.  Todd,  32  N.  J.  L.  128  (1866)  ;  Currier  v.  Gale,  9  Allen,  522  (1865) ; 
Klione  V.  Gale,  12  Minn.  54  (1866) ;  Grayv.  Finch,  23  Conn.  513;  Winklcy  v.  K:iime,  33 
K.  n.  268  (1S55) ;  Pickett  v.  Packham.  L.  R.  4  Cli.  App.  100  (1868) ;  Smith  r.  Ifardy,  36 
Wi#.  417  (1874) ;  Harriman  v.  Queen  Ins.  Co.,  49  Wis.  71  (18*0) ;  U.  S.  r.  De  Coursey, 
1  Pinney  (Wis.)  508  (1815) ;  Ilaubon  v.  Chitovitc.h,  ISNev.  395  (1878) ;  lluuterv.  Beu- 
nett,  15 La.  Ann.  715  (1860). 

8  Jackson  r.  Potter,  4  Wend.  672  (18:^0). 

■•  Hell  V.  Young,  1  Giant's  Cas.  175  (1854). 

(1G3) 


1G4  PRESU3JPTIVE   EVIDENCE.  [eULE    29. 

other  circumstances  from  which  a  stronger  counter  pre- 
sumption arises.  It  is  not  necessary  for  the  creditor  to 
prove  that  the  debt  is  not  paid  or  discharged.  The  burden 
of  showin2j  that  it  is  rests  on  him  who  alloires  it.  And 
■svhen  diligent  search  has  been  made,  unsuccessfully,  by  the 
person  in  whose  hands  the  law  presumes  it  to  be,  it  is  in 
judgment  of  law  a  lost  paper,  and  secondary  evidence  is 
admissible  of  its  contents." 

"Where  a  person  is  proved  to  be  the  owner  of  personal 
property  with  the  present  right  of  possession,  the  presumj)- 
tion  is  that  he  continues  to  be  owner  with  the  right  of  pos- 
session, until  there  is  evidence  that  he  has  parted  with  that 
ownership  or  right  of  possession,  and  the  mere  fact  that 
the  property  is  in  the  possession  of  another,  with  his  con- 
sxmt,  does  not  raise  a  legal  presumption  of  change  of  title 
so  as  to  shift  the  burden  of  proof  upon  the  original  owner 
to  show  that  he  retains  his  right  of  property  and  his  right 
of  possession  therein.^ 

Whenever  the  possession  of  one  i^erson  is  once  shown  to 
have  been  in  subordination  to  the  title  of  another,  it  will 
not  be  adjudged  afterwards  adverse  to  such  title,  without 
clear  and  positive  proof  of  its  having  distinctly  become  so  ; 
for  every  presumption  is  in  favor  of  the  possession  contin- 
uins:  in  the  same  subordination  to  the  title. ^ 


B. 

I.  In  an  action  of  replevin,  it  is  proved  that  a  tenant  was  evicted 
from  his  possession.  The  presumption  is  that  he  continues  out  of  pos- 
session .^ 

II.  The  question  is  the  admissibility  of  secondary  evidence  of  a  docu- 
ment. It  is  proved  that  two  years  ago  diligent  search  was  made  for  the 
document,  but  it  could  not  be  found.  The  presumption  is  that  it  is  still 
lost,  and  secondary  evidence  is  admissible.* 


1  Wells,  C.  J.,  in  Magee  v.  Scott,  9  Gush.  148  (1S51). 

2  Hood  V.  Hood,  2  Grant's  Gas.  229  (1858). 

3  Saunders  r.  Springsteen,  4  Wend.  429  (1830). 
*  Poe  V.  Darrah,  20  Ala.  289  (1852). 


RULE    29.]       CONTINUANCE   OF   THINGS    GENEKALLY. 


1G5 


C. 


I.  A  statute  authorizes  the  issuance  of  an  attachment  ui)oa  the  filing 
of  an  alliilavit  .showin;^  the  existence  of  the  debt,  etc.,  at  the  time  of  tlie 
application.  Au  allUlavit  is  made  on  October  5th,  showing  a  debt,  etc., 
on  that  day,  but  it  is  not  filed  till  October  KJth,  when  the  attachment  is 
applied  for.  The  presumption  is  that  the  debt  is  unpaid  on  the  lOlh, 
and  the  attachment  is  properly  issued. ^ 

II.  A  debt  was  due  from  A.  to  B.,  in  January,  18GG.  In  November,  1865. 
A.  admits  the  debt,  and  in  ISCZ  B.  brings  suit  for  it.  The  prusurap- 
tiou  is  that  the  debt  is  still  due.^ 

III.  To  prove  a  debt  against  a  bankrupt,  an  entry  in  his  boolis  some 
months  before  the  banl^ruplcy  showing  that  he  was  indebted  to  the 
claimant  in  a  certain  sum  is  proved.  The  presumption  is  that  the  debt 
still  continues.^ 

In  case  I.  it  was  said  :  *'  The  affidavit  having  shown  the 
debt  to  be  existing  and  past  due  on  the  5th  of  October,  the 
legal  presumption  would  follow  that  it  remained  due  on  the 
IGth  of  October.  If  a  debt  was  shown  to  exist,  but  not 
due,  after  the  day  of  its  falling  due,  there  might  perhaps 
arise  a  legal  presumption  that  the  debtor  had  complied  with 
his  contract  and  paid  as  per  agreement.  But  when  it  is 
once  established  that  there  has  been  a  breach  of  contract, 
and  the  debtor  has  failed  to  pay  at  the  right  time,  we  are 
induced  to  think  there  is  a  fair  legal  presumption  arising 
that  the  debt  continues  due  and  unpaid  until  something  is 
shown  to  the  contrary,  or  there  is  such  lapse  of  time  as  to 
raise  a  contrary  presumption." 

In  case  II.  it  was  argued  that  the  presumption  was  that 
the  debt  was  paid  when  it  became  due.  But  the  court  said : 
"The  fact  that  the  debt  had  not  become  payable  at  the 
time  the  defendant  admitted  its  existence  docs  not  take  the 
case  out  of  the  general  rule.  Pajmient  being  an  affirmative 
fact  to  be  done  or  performed  by  the  defendant  was  for  the 
defendant  to  prove." 

The  payment  of  a  debt  is  evidenced  by  a  receipt  under 

1  O'Xeil  f.  New  I'ork,  etc.,  Mining  Co.,  3  Xev.  141  (ISCT). 

-  Farrr.  Payne,  40  Vt.  GI5  (1S68). 

3  Jaclisou  V.  Irviu,  2  Cami).  lb  (1S09). 


16G  rrvESUMrTm:  evidence.  [rule  29. 

seal  —  v.'bich  is  conclusive,  making  an  estoppel  —  or  a  sim- 
ple receipt  which  is  prima  facie  evidence  and  rebuts  the 
presumption  of  the  continuance  of  the  debt.  Other  cir- 
cumstances which  render  the  payment  probable  may  also 
rebut  tho  presumption -^  as  for  example,  the  settlement  of 
accounts  between  the  parties  subsequent  to  the  accruing  of 
the  debt,  in  which  settlement  no  mention  of  the  debt  is 
made,^  or  a  receipt  for  subsequent  debts. ^ 

D. 

I.  Goods  are  delivered  in  a  good  condition  to  A.,  a  carrier,  ■who 
delivers  them  at  the  end  of  his  route  to  B.,  another  carrier.  At  the  end 
of  B.'s  route  they  are  discovered  to  be  damaged.  In  an  action  against 
B.  the  presumption  is  that  he  received  them  in  good  condition  and  the 
burden  is  on  him  to  show  that  he  did  not.^ 

II.  A  box  containing  several  pieces  of  cloth  addressed  to  Fon  du  Lac, 
Wis.,  was  delivered  at  Jamestown,  N.  Y.,  to  the  Atlantic  and  Great  West- 
ern R.  Co.  This  carrier  transported  it  to  Mansfield,  Ohio,  and  delivered 
it  to  the  Pittsburg  and  Ft.  Wayne  R.  Co.,  who  carried  it  to  Chicago  and 
delivered  it  to  the  Chicago  and  North  Western  R.  Co.,  vrho  carried  it  to 
Fon  du  Lac.  When  the  box  was  opened  at  Its  destination  several  pieces 
of  the  cloth  were  missing.  There  was  no  proof  in  whose  hands  the  box 
was  when  the  theft  occurred.  In  an  action  against  the  Chicago  and 
Korth  Western  R.  Co.  for  the  value  of  the  missing  pieces,  hdd,  the  box 
being  found  to  be  intact  when  it  was  delivered  to  the  lirst  carrier,  the 
presumption  is  that  it  continued  so,  until  the  contrary  is  shown,  and 
the  defendant  (the  last  carrier)  is  liable.* 

III.  A  vessel  is  proved  to  be  seaworthy  (as  to  chains,  cables,  etc.), 
when  she  left  port  in  June,  1835.  On  December  16th  she  is  wrecked, 
and  arrives  in  port  December  24th  without  sufficient  cables,  etc.  The 
presumption  is  that  she  was  sufficiently  equipped  on  December  15th. ^ 

IV.  A  guest  sues  an  inn-keeper  for  the  loss  of  packages  containing 
money  and  securities  of  great  value,  which  he  had  given,  sealed  in  an 
envelope,  to  his  clerk,  to  be  deposited  in  the  safe.  The  inn-keeper  denies 
that  the  envelope  contained  that  amount  of  money.  It  is  proved  that 
shortly  before  that  time  the  guest  was  seen  with  this  money  in  his  pos- 
session. The  presumption  is  that  the  guest  had  such  money  at  the  time 
he  alleged  he  had  given  it  to  the  clerk ."^ 

1  Colsell  V.  Bndd,  1  Camp.  27. 

«  Beet  Ev.  sec.  400;  aw  j)ost.  Cap.  XV. 

3  Smith  V.  New  York  Central  R.  Co.,  43  Barb.  225  (1804). 

*  LauRhlin  v.  Chicago,  etc.,  li.  Co.,  23  Wis.  204;  9  Am.  Kop.  403  (1871). 

<>  Martin  v.  Fishing  Ins.  Co.,  20  Pick.  389  (183S). 

6  Wilkins  v.  Earlc,  44  X.  Y.  172  (J870). 


RULE    29.]       CONTINUANCE    OF   THINGS    GENERALLV.  1G7 

V.  It  is  shown  that  a  decree  in  chancery  Tras  rendered  at  a  certain 
time.  There  is  no  evidence  that  it  has  been  reversed  or  annulled.  The 
presumption  is  that  it  is  still  in  force.' 

VI.  The  question  is  whether  a  certain  custom  existed  Intlie  year  1840. 
The  jury  fluds  that  the  custom  existed  in  1689,  without  more.  The  pre- 
sumption is  that  the  custom  exists  in  1840.^ 

*♦  The  property,"  as  was  said  in  case  I.,  ♦'  was  placed  in 
the  bands  of  the  Western  Railroad  Company  in  good  order 
and  condition,  and  until  the  contrary  is  shown  must  be  pre- 
sumed to  have  continued  in  that  condition  while  in  the  pos- 
session of  that  company.  It  was  delivered  by  the  defendant 
after  being  transported  over  its  road  from  Albany  to 
Rochester,  in  a  damaged  condition,  and  the  further  pre- 
sumption naturally  follows  that  it  received  the  injury  while 
in  the  possession  of  the  defendant.  The  general  rule  is  that 
things  once  proved  to  have  existed  in  a  particular  state,  are 
to  be  presumed  to  have  continued  in  that  state,  until  the 
contrary  is  established  by  evidence  either  direct  or  pre- 
sumptive. Unless  the  rule  is  to  be  applied  to  goods  deliv- 
ered, to  be  transported  over  several  connecting  railroads, 
there  would  be  no  safety  to  the  owner.  It  would  often  be 
impossible  for  him  to  prove  at  what  point,  or  in  the  hands 
of  which  company,  the  injury  happened.  But  give  to  such 
party  the  benefit  of  the  presumption  that  the  goods  he  has 
delivered  in  good  order  in  such  case  continued  so  until  they 
came  to  the  possession  of  the  company  which  delivers  them 
at  the  place  of  destination  in  a  damaged  condition,  and  his 
ricrhts  will  bo  completely  protected.  The  burden  is  then 
shifted  upon  the  latter  company,  of  proving  that  such  goods 
came  to  its  possession  in  a  damaged  condition,  by  way  of 
defense.  This  proof  the  latter  company  can  always  make, 
much  more  easily  and  readily  than  the  converse  can  be 
proved  by  the  owner." 

Incase  II.  it  was  said;  "What  presumption  is  to  be 
indulged  against  the  Chicago  and  Northwestern  Company  so 

1  Murphy  v.  Orr,  33  111.  4S9  (ISCJ).    But  eec  Cacon  i'.  Smith,  2  La.  Ann.  441  (1847). 
»  Scales  V.  Key,  11  Ad.  &  Ell.  819  (1S40). 


1G8  prLESUirPTi\'E  evidence.  [rule  29. 

as  to  charge  that  company  with  liability  for  the  loss.  It  is 
manifest  that  the  recovery  against  it  can  not  be  sustained 
without  the  aid  of  presumption  of  some  kind.  To  main- 
tain their  action  the  plaintiffs  must  show,  either  b}'  direct 
evidence  of  the  facts  themselves,  or  by  legitimate  and 
proper  inference  from  other  facts  proved,  first,  that  the 
cloths  wdiich  are  the  subject  of  suit  were  in  the  custody  of 
the  defendant  as  a  common  carrier,  for  transportation  over 
its  road;  and  secondly,  while  in  the  custody  of  the  defend- 
ant they  were  lost.  These  two  facts,  either  by  direct  proof 
or  by  legal  and  proper  inference  or  presumption,  nmst 
have  been  established,  or  the  verdict  can  not  be  sustained. 
The  direct  proof  is  wholly  wanting.  No  one  knows  or  can 
say  with  any  certainty  whatever,  that  the  cloths  ever  came 
into  the  possession  of  the  defendant  at  all.  The  most  that 
can  be  said,  as  a  mere  natural  inference  from  the  facts 
proved,  is,  that  they  might  have  come  into  its  possession, 
and  so  have  been  lost  or  stolen  while  in  its  custody.  As  a 
mere  natural  inference  or  presumption  of  fact  to  be  drawn 
or  indulged  by  the  jury,  it  is  the  slightest  and  weakest 
possible,  if,  indeed,  there  exists  any  foundation  for  it. 
And  I  do  not  see  that  there  is  any  foundation,  according  to 
Mr.  Starkie's  definition  of  natural  presumptions  of  inere 
fact.  If  there  be  a  presumption,  therefore,  upon  which 
the  defendant  is  to  be  held  liable,  it  must  be  of  the  second 
class  spoken  of  by  that  learned  author,  namely,  '  legal 
presumptions  made  by  a  jury;  or  presumptions  of  laio  and 
fact.^^  Docs  such  legal  presumption  exist  in  this  case? 
The  presumption  <;laimed  and  relied  upon  is,  that  a  particu- 
lar state  of  things  being  once  proved,  that  state  is  presumed 
to  have  continued  until  the  contrary  is  established  by  evi- 
dence, either  director  presumptive.  '  The  position  is  that 
the  cloths  being  proved  to  have  been  in  the  boxes  at  the 
time  of  their  delivery  to  the  Atlantic  and  Great  Western 
Kailway  Company,  the  presumption    of  law  is  that   they 

1  Welch  V.  Sackett,  12  Wis.  257;  Graves  v.  State,  Id.  503. 


RULE    29.]       CONTIXUAXCE    OF   THINGS    GENERALLY.  109 

continued  therein  until  the  boxes  came  to  the  possession  of 
the  defendant,  unless  the  contrary  be  shown,  the  burden  of 
which  rests  upon  the  defendant.  The  existence  of  a  pre- 
sumption of  this  kind  in  certain  cases  is  not  denied,  l)ut  the 
point  is  upon  its  applicability  here.  If  the  plaintiffs  had 
broujiht  their  suit  ajjainst  the  Atlantic  and  Great  Western 
Compan}'-,  could  that  company  have  escaped  liability  on  the 
ground  of  such  presumption?  And  so,  if  the  Pittsburg  and 
Fort  Wayne  Company  had  been  sued,  could  it  have  avaided 
responsibility  on  the  same  ground?  Could  both  these  com- 
panies have  exonerated  themselves  and  imposed  liability 
for  the  loss  exclusively  upon  the  defendant,  -svhen  there  was 
no  more  evidence  of  the  loss  having  occurred  while  the 
boxes  were  in  the  custody  of  the  defendant  than  when  in 
the  custody  of  either  of  themselves?  If  those  companies 
could  have  done  so  then  it  must  have  been  upon  some  tech- 
nical application  of  the  doctrine  of  presumption — upon  a 
presumption  which  is  artificial  rather  than  natural,  and  is 
raised  and  sanctioned  by  the  law  from  motives  of  necessity 
or  policy  to  give  certainty  to  the  remedy  and  prevent  a 
failure  of  justice  in  such  cases.  As  the  common  carrier 
next  in  order,  the  defendant  was  bound  to  receive  and 
transport  the  boxes  when  tendered.  It  had  no  means 
of  investigation  or  inquiry  into  their  contents.  It  had 
no  right  to  open  the  boxes  or  examine  what  they  con- 
tained and  if  it  had,  could  not  have  detected  the  loss  by 
such  examination,  and  so  have  refused  to  receive  and 
carry.  It  must  take  the  boxes  as  they  were  with  no  ex- 
ternal signs  or  appearances  of  breaking  or  injury,  and 
nothing  to  give  warning  that  the  cloths  had  been  previously 
abstracted  or  removed  and  carry  them  forward  to  their 
place  of  destination.  Under  these  circumstances,  the  rule 
or  presumption  of  law  which  makes  the  defendant  liable  for 
the  value  of  the  goods  unless  (what  seems  quite  i!iii)ossiblc 
to  be  done),  it  shows  where  the  loss  actually  took  place, 
must  be  supported  by  most  clear  and  satisfactory  reasons  of 
policy  or  necessity,  or  otherwise  it  should  be  rejected.     It 


170  rRESUMPTIVE   EVIDENCE.  [rULE    29. 

must  bo  shown  that  greater  injustice  or  more  certain  injus- 
tice will  ensue  from  its  rejection,  than  will  or  may  follow 
from  its  adoption.  I  have  been,  as  I  have  said,  in  very 
considerable  doubt;  but  examination  convinces  me  that 
there  are  such  reasons  and  that  both  the  principle  and  author- 
ity sustain  the  presumption.  The  very  uncertainty  which 
exists  as  to  when  and  where  the  cloths  were  taken  out,  or 
in  Avhose  custody  the  boxes  then  were  and  the  difficulty  or 
impossibility  of  ever  ascertaining  those  facts,  make  the  pre- 
sumption absolutely  necessary.  What  is  difficult  or  impos- 
sible for  the  defendant  to  find  out  with  respect  to  the 
breaking  and  larceny  is  still  more  difficult  or  impossible 
for  the  plaintiffs.  The  defendant  possesses  means  and 
facilities  which  the  plaintiffs  do  not.  To  say  that  the 
plaintiffs  shall  not  recover  because  they  have  not  ascer- 
tained and  proved  that  the  cloths  were  taken  while  the 
boxes  were  in  the  custody  of  the  defendant  is,  in  eflect,  to 
say  that  they  are  without  remedy  in  the  law  for  their  loss. 
If  required  to  make  such  proof  to  establish  a  cause  of  action 
a;:^ainst  this  company,  then  the  same  proof  would  be 
required  in  a  suit  against  either  of  the  others,  and  the 
plaintiffs  could  not  recover  against  any  although  it  is  cer- 
tain that  one  of  them  is  or  should  be  responsible  for  the  loss. 
If  the  plaintiffs  knew  or  could  prove  in  whose  custody  the 
boxes  were  when  the  cloths  were  taken,  there  would  be  no 
hardship  perhaps  in  requiring  them  to  sue  that  company. 
But  the  plaintiffs  do  not  know,  nor  is  it  possible  for  them 
to  ascertain  this,  and  unless  aided  by  presumption,  they  are 
without  remedy,  which  is  a  positive  and  certain  injustice.  I 
know  of  no  more  reasonable  or  proper  presumption  to 
apply  than  that  here  invoked.  In  fact,  I  know  of  no  other 
fitted  to  the  facts  and  circumstances  of  the  case.  It  is  true 
the  defendant  may  not  be  the  company  which  ought  in  very 
fact  to  be  visited  with  the  consequences  of  the  loss,  but  it 
is  at  the  same  time  true  that  it  may  be  such  company. 
The  cloths  may  have  been  taken  while  the  boxes  were  in  its 
custody.     It  is  not   certain  that  they  were  not,  and  there- 


RULE    29.]       CONTINUANCE    OF   THINGS   GENERALLY  171 

fore  not  certain  that  injustice  lias  been  done  the  defendant. 
On  the  other  band,  the  wrong  and  injustice  done  the  pUiiu- 
tiffs,  if  they  are  dismissed  without  remedy,  aro  certain. 
They  are  no  matter  of  doubt  or  specuhition.  If  there  were 
no  redress  in  such  case,  it  could  no  longer  be  the  boast  of 
our  law  that  there  is  no  wrong  without  its  remedy,  and  the 
strict  liability  of  common  carriers,  whenever  two  or  more 
are  associated  in  the  transportation,  or  connected  in  the  line 
or  route,  would  be  at  an  end.  It  would  be  far  more  in  har- 
mony with  the  rules  of  the  common  law  respecting  such 
liability,  that  any  or  all  of  the  carriers  so  associated,  or 
whose  lines  or  routes  connect,  and  who  have  had  possession 
of  the  goods  should  be  held  liable,  at  the  option  of  the 
owner  or  consijxnee  in  such  case,  than  that  none  of  them 
should  be.  And  the  reasons  for  adhering  to  those  rules  of 
the  common  law  probably  exist  at  the  present  day  quite  as 
much  as  ever;  and  by  some  they  are  thought  to  be  even 
more  cogent.  The  difficulties,  nay  even  impossibilities,  by 
which  owners  would  be  beset,  if  put  to  the  task  of  ascer- 
taining where  their  packages  or  boxes  were  broken  open 
and  constantly  plundered  when  in  transit  over  our  long 
routes  are  well  known  and  are  illustrated  by  the  facts  of  this 
case." 

"  AVhen  you  prove,"  it  was  said  in  case  rv.,  "that 
shortly  before  the  20th  of  April,  the  plaintiff  had  in  his 
possession  the  particular  drafts  which  he  claims  to  have 
deposited,  and  the  particular  bills  of  $1,000  and  $100  which 
he  also  claims  to  have  deposited,  some  links  in  the  chain 
are  furnished.  Their  strength  depends  upon  their  nearness 
and  relation  to  the  transaction.  If  A.,  at  seven  o'clock,  had 
seen  this  envelope,  and  its  contents  with  the  plaintiff,  and 
B.,  at  five  minutes  past  seven,  had  seen  him  make  the 
deposit,  I  think  the  two  could,  by  the  inference  of  the  jury, 
be  connected  together,  although  there  was  an  interval  when 
he  was  not  within  the  sight  of  either.  There  is  a  legal  pre- 
sumption of  continuance.  A  partnership  once  established 
is    presumed     to    continue.     Life  is   presumed  to    exist. 


172  PEESU3IPTIYE   EYIDEXCE.  [PXLE    30. 

Possession  is  presumed  to  continue.  The  fact  that  a  man 
•vwas  a  f^ambler  twenty  years  since  justifies  the  presumption 
that  ho  continues  to  be  one.  An  adulterous  intercourse  is 
presumed  to  continue.  So  of  ownership  and  non-residence. 
This  analogy  is  fairly  applicable  to  the  present  case  and 
justifies  the  admission  of  this  evidence." 

"  The  finding  of  the  jury,"  said  Lord  Denman  in  case 
VI.,  *'  that  the  custom  had  existed  since  1689,  was  the  same 
in  effect  as  if  they  had  found  that  it  had  existed  till  last 
week,  unless  something  appeared  to  show  that  it  had  been 
legally  abolished." 

KULiE  30. — Domicil,  residence  or  non-residence  (A), 
solvency  or  insolvency  (B),  infancy  (C),  partnersliip 
(D),  tlic  holding  of  an  office  (E),  authority  to  do  an  act 
(F),  and  other  relations  or  conditions  of  persons  or 
things  (G),  once  shown  to  exist,  are  presumed  to  con- 
tinue until  the  contrary  is  proved. 

Illustrations. 


I.  An  action  is  brouglit  in  Arlcansas,  in  1841,  by  B.  against  P,  It  is 
proved  that  P.  resided,  in  1824,  in  Indiana.  Tlie  presumption  is  that  P. 
still  resides  there .i 

II.  B.,  an  inhabitant  of  tlie  town  of  G.,  Massachusetts,  conveyed  his 
farm  on  April  1st,  and  on  the  27th  of  that  month  went  with  his  family  to 
his  brother's,  in  the  town  of  T.,  where  he  remained  until  several  days 
after  May  1st,  returning  then  to  G.,  and  removing  on  the  27th  of  May  to 
Illinois.  The  presumption  is  that  B.  had  not  changed  his  domicil  in  G., 
on  May  1st.' 

III.  To  except  an  action  on  a  contract  from  the  bar  of  the  Statute  of 
Limitations  it  is  necessary  to  prove  that  the  defendant  was  anon-resident 
at  the  commencement  of  the  suit.  It  is  proved  that  he  was  a  non-resi- 
dent at  the  time  the  contract  was  made.  The  presumption  is  that  he 
continued  a  non-resident,  and  throws  the  burden  on  him  to  show  that  he 

1  Prather  v.  Palmer,  4  Ark.  456  (1841);  Inhabitants  r.  Inhabitants,  6  Allen,  ."iOS 
(1863) ;  Eaton  r.  Woydt,  26  Wis  383  (1870) ;  Uixford  v.  Miller,  49  VI.  319  (1877) ;  Green- 
fielfl  V.  Camden,  74  Me.  .W  (18S2) ;  Daniels  v.  Hamilton,  52  Ala.  105  (1875). 

2  Kiiburn  v.  Benuett,  3  Mete.  199  (1S41). 


RULE    30.]       CONTINUAXCE   OF   THINGS    GENERALLY.  173 

has  been  within  the  State  a  sufficient  length  of  time  to  create  a  bar  under 
the  statute.^ 

IV.  Evidence  by  deposition  is  allowed  to  be  taken  where  the  witness 
is  more  than  thirty  miles  of  the  place  of  trial,  and  unable  to  attend  court. 
Before  the  trial  the  deposition  of  II.  is  taken  for  this  cause.  Subse- 
quently when  it  is  offered  on  the  trial,  it  is  allej^ed  that  II.  is  now  in 
town,  and  able  to  attend.  The  burden  of  proving  this  is  on  the  party 
alleging  this.' 

"  It  is  necessary,"  said  Lord  Wcstbury  in  a  leading  En- 
glish case,  "  in  the  administration  of  the  law,  that  the  idea  of 
domicil  should  exist  and  the  fact  of  doraicil  should  bo 
ascertained,  in  order  to  determine  which  of  two  municipal 
laws  may  be  invoked  for  the  purpose  of  regulating  the 
rights  of  parties.  We  know  very  well  that  succession  and 
distribution  depend  upon  the  law  of  the  domicil.  Domicil, 
therefore,  is  an  idea  of  law.  It  is  the  relation  which  the 
law  creates  between  an  individual  and  a  particular  locality 
or  country.  To  every  adult  person  the  law  ascribes  a 
domicil,  and  that  domicil  remains  his  fixed  attribute  until  a 
new  and  different  attribute  usurps  its  place."  ^ 

And  Lord  Cran worth  added  :  "  It  is  necessary  to  bear  iu 
mind  that  a  domicil,  though  intended  to  be  abandoned,  will 
continue  until  a  new  domicil  is  acquired,  and  that  a  new 
domicil  is  not  acquired  until  there  is  not  only  a  fixed  inten- 
tion of  establishing  a  permanent  residence  in  some  other 
country,  but  until  also  this  intention  has  been  carried  out 
by  actual  residence  there."  * 

B. 

I.  A.  is  proved  to  be  in  solvent  circumstance  on  a  certain  day.  A.  is 
presumed  to  continue  solvent  until  the  contrary  is  proved.* 


1  state  Bk.  v.  Scwell,  18  Ala.  CIG  (1851). 

2  F.iown  V.  Burnliam,  23  We.  33  (IS-tS). 

8  Bell  r.  Kennedy,  L.  U.  1  Sc.  App.  3iO  (1868). 

■»  And  sec  as  to  the  presumption  of  conliuuanco  of  domicil,  residence,  and  non- 
residence,  Daniels  v.  Ilaniillon,  52  Ala.  10.5  (1875) ;  Walker  r.  Walker,  1  Mo.  (App.) 
401  (ISTC)  ;  Nixon  v.  Palmer,  10  Barb.  175  (1850)  ;  Church  v.  Rowell,  41)  Me.  ,"07  (ISCl; ; 
LittloQeld  V.  Inhabitants, 50  Jd.  475  (1SG2) ;  Goldie  v.  McDonald,  70  Hi.  (j05  (IS75). 

»  Walrod  r.  Ball,  9  Barb.  271  (1S50). 


174  pEESUMPTm:  evidence.  [rule  30. 

II.  An  action  is  brought  ou  a  promissory  note  and  it  is  proved  that 
the  maker  was  insolvent  at  its  maturity.  The  presumption  is  that  he  was 
insolvent  when  the  action  was  brought. ^ 

III.  It  is  proved  that  A.  was  bankrupt  on  August  31st.  The  presump- 
tion five  months  later  is  that  he  continues  so.'' 


C. 

I.  A.  brings  an  action  in  his  own  name  to  cancel  a  deed  executed 
during  his  infancy.  There  is  no  allegation  that  he  has  attained  his 
majority  before  commencing  the  action.  The  presumption  is  that  A.  is 
still  an  infant.* 

II.  In  a  settlement  case,  it  is  proved  that  a  son  is  over  age.  It  is 
nevertheless  presumed  that  he  contiuues  unemancipated  as  in  the  days 
of  his  infancy,  unless  there  is  evidence  to  the  contrary.* 

"The  counsel  for  plaintiff  claims,"  it  was  said  in 
case  I.,  "that  the  presumption  of  law  is  that  a  party 
commencing  his  action  in  court  is  of  full  age,  and 
entitled  to  maintain  the  action  in  his  own  name  until 
the  contrary  is  shown.  In  most  actions  this  is  true,  but 
the  case  at  bar  forms  an  exception.  For  the  whole 
cause  of  action  in  this  case  is  based  upon  an  act  done 
by  the  plaintiff  during  infancy,  and  tlie  plaintiff  being 
in  court  is  compelled  to  plead  that  the  act  was  done 
during  his  infancy.  The  age  of  the  plaintiff  at  the  time 
of  the  execution  of  the  deed,  is  not  stated,  nor  is  there 
any  thing  in  the  complaint  from  which  the  court  can 
infer  that  the  plaintiff  has  attained  his  majority.  The 
nature  of  the  relief  he  seeks  requiring  the  plaintiff 
after  he  appears  in  court  to, show  himself  a  minor  at 
the  time  of  doing  a  certain  act,  the  presumption  is  that 
such  condition  continues  until  the  plaintiff  himself  nega- 
tives it." 


1  Mullen  V.  Pryor,  12  Mo.  307  (1848) ;  Body  v.  Jewson,  33  Wis.  402  (1873). 

2  I^onahuer.  Coleman,  49  Conn.  464  (18S2). 
8  Irvine  v.  Irvine,  5  Minn.  61  (1860). 

*  Ite  Liilcshall,  7  Q.  B.  158  (1845). 


nULE    30.]       CONTINUANCE   OF   THINGS   GENERALLY.  175 

D 

I.  A  partnership  brings  an  action  on  a  note ;  it  is  contended  that  the 
plaintiffs  are  not  partners.  It  is  proved  that  three  years  previous  they 
were  partners.    The  presumption  is  that  they  continue  to  be  so.* 

In  case  I.  it  was  said  :  *'  The  evidence  of  a  joint  interest 
in  the  plaintiffs  was  sufficient  prima  fade.  It  was  shown 
that  they  were  partners  in  business  two  or  three  years  pre- 
vious. The  witness  stated  that  he  had  frequently  done 
business  with  them  as  partners  and  had  settled  with  them 
as  such  some  two  or  three  years  since.  There  was  no  evi- 
dence of  any  change  or  dissolution  of  partnership,  and  the 
presumption  was  that  they  were  still  partners." 

E. 

I.  A.  is  indicted  for  libelling  B.  in  his  capacity  of  public  officer.  It  is 
proved  tliat  previous  to  tlie  publication  of  the  libel,  B.  held  a  public 
office.  The  presumption  is  that  B.  continued  to  hold  it  at  the  time  of 
the  publication.* 


I.  The  authority  of  a  minor  son  to  bind  his  father  by  contract  is 
shovrn  to  exist  in  1845.  A  year  later  the  son  makes  a  contract  which  the 
father  contests.  The  presumption  is  that  the  son  had  authority  to  bind 
him  at  this  time.^ 

G. 

I.  A.  sues  B.  for  two  weeks'  board.  It  is  proved  that  for  a  year  and 
up  to  the  commencement  of  these  two  weeks,  B.,  who  was  A.'s  father, 
had  lived  with  him,  and  A.  had  not  claimed  any  board.  The  presumption 
is  that  the  parties  were  living  together  during  the  two  weeks  on  the  same 
terms.* 

II.  In  Alabama,  in  1855,  the  stockholders  of  a  corporation  are  not 
competent  witnesses  in  an  action  by  or  against  it.  An  action  is  brought 
by  the  W.  company,  and  one  Y.  is  offered  as  a  witness.  There  is  evi- 
dence that  Y.  was  a  stockholder  in  the  W.  company  in  1850.  The  pre- 
sumption is  that  Y.  is  a  stockholder  now,  and  he  is  incompetent." 

1  Cooper  f.  Dedrick,  22  Barb.  51G  (1S56) ;  and  see  Anderson  r.  Clay,  1  Stark.  405 
(ISlf.) ;  Clark  v.  Alexander,  8  Scott  X.  R.  161  (1S4-1). 

2  R.  r.  I5udd,5Esp.230. 

«  UrcKenzie  r.  Ptcvcns,  10  Ala.  692  flSol) ;  Ryan  v.  Sams,  12  Q.  B.  460  (1S48). 

*  Eanies  v.  Eamesi,  41  N'.  H.  177  (1S60). 

»  Moulgomery  I'iuuk  KoaU  Co.  v.  Webb,  27  Ala.  CIS  (1S5J). 


17G  PKESUMPTIVE   EVIDENCE.  [rULE    30. 

III.  In  1S70  a  state  of  peace  is  proved  to  have  existed  in  a  certain 
country  in  18GG.  The  presumption  is  that  the  country  is  still  at 
peace  .1 

*III.  (a).  In  1S70  a  state  of  war  is  proved  to  have  existed  in  another 
country  in  18G0.    The  presumption  is  that  the  country  is  still  at  war .2 

IV.  In  1880  it  is  shown  that  a  public  treaty  was  in  force  between  A. 
and  E.  in  1870.    The  presumption  is  that  it  is  still  in  force.^ 

V.  A  certain  state  of  government  is  proved  to  have  existed  a  number 
of  years  ago  in  a  certain  country.  The  presumption  is  that  that  state 
still  exists.* 

VI.  A  corporation  ia  shown  to  have  existed  at  a  former  date.  The  pre- 
sumption is  that  it  still  exists.* 

VII.  A.  and  B.  are  shown  to  be  living  in  illicit  relations  at  a  previous 
time.    The  illicit  intercourse  is  presumed  to  continue.^ 

VIII.  A  party's  reputation  for  truth  and  veracity  is  shown  to  have 
been  formerly  good.    It  is  presumed  to  continue  good.' 

IX.  It  is  proved  that  F.  was  an  unmarried  woman  at  a  certain  date 
The  presumption  is  that  she  continues  so  until  proved  to  have  married. 

X.  The  common  law  is  known  to  have  been  in  force  in  a  certain  place 
at  a  certain  date.  The  presumption  is  that  it  continues  so  until  the  con- 
trary is  shown.' 

XI.  A.  is  a  tenant  of  a  house.  A  month  before  her  term  expires  she 
has  no  license  to  sell  liquor  there.  It  can  not  be  presumed  that  she  will 
obtain  one  before  her  term  ends.^" 

XII.  B.  is  indicted  for  wounding  F.  so  as  to  "  disable  "  him.  The 
question  is  whether  F.  has  been  "disabled."  The  evidence  is  that  F. 
was  so  badly  wounded  as  to  be  unable  to  walk  at  the  time.  The  pre- 
sumption is  that  F.  continues  in  that  condition. ^^ 

XIII.  A  suit  involving  certain  property  is  brought  before  and  heard 


1  Covert  V.  Gray,  34  How.  Pr.  450  (1S6G). 

2  Id. 

*  People  V.  McLeod,  1  Hill,  407  (ISll). 

*  Gelston  v.  Hoyt,  1  Johns.  Ch.  543  (184.^). 

»  People  V.  Manhattan  Co.,  9  Wend.  351  (1832). 

«  People  V.  Squires,  49  Mich.  487  (1882);  Smith  v.  Smith,  4  Paige  Ch.  432  (1834); 
Cargile  v.  Wood,  63  Mo.  501  (1876). 

7  Lum  V.  State,  11  Tex.  (App.)  483  (1882). 

8  Pago  V.  Findley,  5  Tex.  391  (1849). 

9  Stokes  V.  Macken,  62  Barb.  147  (1861).  And  we  presume,  also,  that  the  law 
remains  unchanged  in  the  absence  of  proof  to  the  contrary.  Stol^esv.  Macken,  62 
Barb.  149  (1861) ;  State  v.  Patterson,  2  Ired.  (L.)  356  (1842) ,  Isabella  v.  Pecot,  2  La. 
Ann.  387  (1847) ;  Arayo  v.  Currell,  1  La.  mo  (1830) ;  Wilson  v  Smith,  5  Yerg.  379  (1825). 

1"  Kane  v.  Johnston,  9  Bosw.  154  (1862). 
u  Baker  v.  Slate,  4  Ark.  56  (1812). 


RULE    30.]       CONTINUANCE    OF   THINGS    GENERALLY.  177 

by  Judge  II.  in  the  year  18G8.  It  is  proved  that  the  judge  was  interested 
In  this  property  in  18C7.  The  presumption  is  that  he  still  is  interested 
in  it.i 

XIV.  An  execution  issued  by  the  clerk  of  the  court  was  delivered  to 
the  sheriff.  The  presumption  is  that  it  remains  there  during  his  con- 
tinuance in  oUlcc,  unless  it  is  shown  to  have  been  returned. - 

In  case  XII.  it  Avas  said :  <'  Does  this  evidence  support 
the  averment  in  the  indictment  that  he  was  thereby  dis- 
abled, in  the  sense  and  meaning  of  the  statute?  We  think 
it  does.  For  having  proved  the  effect  of  the  wound,  and 
there  being  no  testimony  introduced  by  the  prisoner  rebut- 
ting this  evidence,  where  the  means  were  in  his  power, 
showing  that  the  injury  was  but  temporary,  from  which 
the  witness  had  recovered,  furnishes  a  forcible  inference 
against  him;  and  the  existence  of  the  disabling  having 
once  been  proved,  its  continuance  is  presumed  till  proof 
is  given  to  the  contrary.  From  the  fact  of  a  wound 
having  been  once  given,  its  nature  raises  a  very  strong 
presumption  of  its  continuance,  and  that  the  party  did 
not  recover  from  its  effects  immediately,  and  as  there 
is  no  particular  time  when  the  presumption  ceases,  it  still 
continues." 

In  case  XIII.  it  was  said:  *'Let  us  for  the  argument 
assume  that  it  was  proved  that  in  1867  the  judge  owned 
an  interest  in  the  defendant's  mine.  If  he  did  own  an 
interest  at  that  time,  but  sold  out  or  abandoned  his  claim 
before  the  commencement  of  this  suit,  it  would  not  dis- 
qualify him.  When  a  certain  state  of  facts  is  proved  to 
have  existed,  the  legal  presumption  is  that  the  same 
state  of  things  continues  to  exist  until  that  presump- 
tion is  rebutted  by  proof  of  some  counter  presumption 
arising  from   lapse  of  time  or  some  other  circumstance. 


1  Table  Mountain  Mining  Co.  v.  Waller's  Defeat  Mining  Co.,  4  Nov.  220  (ISCS). 

-  Anderson  v.  Dlyllic,  T)!  (Ja.  507  (ISTJ).  lu  aXorth  Carolina  case  it  was  held  that 
a  holograph  script  was  seen  among  the  valuable  papers  and  effects  of  the  decedent 
eight  months  licfore  his  death,  was  no  evidence  that  it  was  found  there  at  or  after 
hiB  death.    Adams  v.  Clark,  S  Jones  tL.)  60  (isCO) 

12 


178  PRESUMPTIVE  EVIDENCE.        [rULE  30. 

If  it  Avas  proved  that  the  judfre  was  interested  in  de- 
fendant's daim  in  1867,  the  legal  presumption  would 
arise  that  he  continued  interested  therein  in  the  year 
1868." 

"The  facts  relied  on  to  show  custody,"  it  was  said  in 
case  XIV.,  were  that  the  fieri  facias  was  issued  in  1861 
and  handed  to  the  sheriff  ;  that  the  same  sheriff  and  deputy 
continued  in  ofBce  during  the  wiiole  of  the  year  1862,  in 
which  year  the  judgment  was  made,  and  that  it  was  not 
shown  to  be  in  other  hands  until  the  following  year.  The 
court  was  requested  to  charge  the  jury  that  in  the  absence 
of  proof  to  the  contrary,  the  presumption  of  law  was, 
that  ix.  fieri  facias,  issued  by  the  clerk  and  handed  to  the 
sheriff,  was  in  the  sheriff's  hands  until  paid,  or  until 
shown  to  have  been  taken  up  by  the  plaintiff  or  some  one 
else  for  him.  The  request  was  denied.  We  think  that, 
under  all  the  facts  in  the  record,  the  court  should  have 
given,  substantially,  the  instructions  asked  for.  The  doc- 
trine that  a  state  of  things  once  existing  is  presumed  to 
continue  until  a  change  or  some  adequate  cause  of  change 
appears,  or  until  a  presumption  of  change  arises  out  of 
the  nature  of  the  subject,  is  an  element  of  universal  law. 
Without  such  a  principle  we  could  count  upon  the  stability 
of  nothing,  and  to  assure  ourselves  of  a  set  of  conditions 
at  one  period  of  time  would  afford  no  ground  for  inferring 
the  same  conditions  at  any  other  period.  This  presump- 
tion of  continuance  is  a  well  recognized  principle  of 
evidence,^  and  we  think  its  application  was  rightfully 
invoked  by  the  counsel  in  the  present  case.  If  this 
fi,eri  facias  passed  regularly  from  the  clerk's  office  to 
the  sheriff  in  1861,  and  there  is  no  evidence  of  its 
return  or  any  other  disposition  of  it  until  1863,  what  is 
there  to  point  to  any  other  custody  but  that  of  the 
sheriff  during  the  year  1862?" 

1  1  Grcenl.,  sec.  41, 


RULE    31.]       COXTIXUANCE    OF   TIIIXGS    GENERALLY.  179 

RULE  31.  —  Sanity  or  insanity  once  proved  to  exlAt  is 
presumod  to  continue.  But  aliter,  as  to  temporary 
insanity,  produced  by  drunkenness,  violent  disease^ 
or  otlierwise. 

Illustrations. 

I.  The  insanity  of  a  person  prior  to  tlie  execution  by  him  of  a  deed 
is  established.  The  burden  is  on  the  party  seeking  its  validity  to  show 
that  it  was  executed  during  a  lucid  interval. ^ 

II.  A.,  in  1800,  is  shown  to  have  been  sane  in  1850.  The  presumption 
is  that  he  is  still  sane.' 

III.  In  1837,  H.  is  inflicted  with  insanity,  resulting  from  a  violent 
disease.    There  Is  no  presumption  that  H.  was  insane  in  1838.' 

"  Every  man  being  presumed  to  be  sane  till  the  contrary- 
is  proved,"  it  was  said  in  case  III.,  *'  the  burden  of  proof 
certainly  rests,  in  the  first  instance,  on  the  party  alleging 
the  insanity.  How  far  this  burden  is  changed  by  the  mere 
fact  of  proof  of  insanity  at  a  particular  period,  is  the 
precise  point  of  the  present  inquiry.  *  *  *  ^  careful 
analysis  of  the  principles  upon  which  presumptions  are 
allowed  to  have  force  and  effect  will  show  that  the  proof 
of  the  insanity  of  an  individual  at  a  particular  period  does 
not  necessarily  authorize  the  inference  of  his  insanity  at  a 

1  Ripley  v.  Babcock,  13  Wis.  425  (1860) ;  Saxon  v.  Whitaker,  30  Ala.  237  (1857) ; 
Sprague  v.  Duel,  1  Clarke  (N.  Y.),  90  (1839) ;  Cartwright  v.  Cartwright,  1  Phill.  100; 
Menkins  v.  Lightner,  18  111.  282  (1857) ;  Jackson  v.  Van  Dusen,  5  Jobns.  154;  Ballew 
r.  Clark,  2  Ired.  (L.)  24  (1S41);  Allen  v.  Tublic  Aclministrator,  1  Bradf.  378  (1S50); 
Vance  v.  Coni.,2  Va.  Cas.  133  (1818) ;  State  v.  Spencer,  31  N.  J.  (L.)  1%  (1S46) ;  State 
V.  Vann,  82  N.  C.  631  (1880) ;  UadHeld's  Case,  29  How.  St.  Tr.  109;  McAlister  v.  State, 
17  Ala.  434  (1850) ;  McLean  v.  State,  16  Id.  672  (1849) ;  Pierce  v.  State, 53  Ga.  3G5  (1S74) ; 
State  V.  Johnson,  40  Conn.  136  (1873) ;  State  v.  Brown,  1  Houst.  Cr.  Cas.  539  (1878) ; 
People  V.  March,  6  Gal.  543  (1856) ;  Atty.-Gen.  v.  Parnther,  3  Brown  C.  C.  441 ;  Hall  v. 
Warren,  9  Vesey,  605;  Ex  parte  Ilolyland,  11  Vescy,  10;  AVhite  v.  Wilson,  13  Vesey, 
'^1;  Gr.ibill  r.  Barr,  5  Pa.  St.  441 ;  Hardin  r.  Hays,  9  Pa.  St.  151 ;  Re  Gangwere,  14  Pa. 
St.  417;  Gombault  r.  Public  Adnir.,  4  Bradf.  226;  Acbey  v.  Stephens,  8  Ind.  411;  Lilly 
f.  Waggoner,  27  111.  3.15;  Staples  v.  Wellington,  58  Me.  453;  Purycar  r.  Rose,  6  Cold. 
21 ;  Porter  v.  Campbell,  53  Tenn.  81 ;  Taylor  r.  Cress^yell,  45  Md.  422 ;  Weston  i:  Hig- 
gins,  40  Me.  103  (1855) ;  Rush  v.  Megee,  36  Ind.  69  (1871) ;  State  v.  Willner,  40  AVis. 
304  (1876). 

-  Grouse  v.  Holman,  19  Ind.  30  (1862). 

«  Hix  V.  Whittemore,  4  Mete.  545  (1842);  and  see  Titlow  r.  Titlow,  64  Pa.  St. 
216  (1867) ;  Brooke  v.  Townshend,  7  Gill,  31  (1854) ;  Stale  v.  Sewcll,  3  Jones  (L.),  245 
(1855) ;  People  r.  Smith,  57  Cal.  130  (1880)  ;  Chandler  r.  Barrett,  21  La.  Ann.  58.  And 
there  is  no  presumption  against  the  sanity  of  one  formerly  a  lunatic  but  restored  to 
reason.    Snow  v.  Bentou.  28  111.  306. 


180  PRESUMPTIVE   EVIDEXCE.  [PvULE   32. 

remote,  subsequent  period,  or  even  several  months  later. 
The  force  of  presumption  arises  from  our  observation  and 
experience  of   the  mutual  connection   between   the  facts 
shown  to  exist   and   those   sought   to   be   established   by 
inference  from  those  facts.     Now,  neither  observation  nor 
experience  shows  us  that  persons  who  are  insane  from  the 
effect  of  some  violent  disease  do  not  usually  recover  the 
rio'ht  use  of  their  mental  faculties.     Such  cases  are  not 
unusual,  and  the  return  of  a  sound   mind  may  be  antici- 
pated from  the  subsiding  or  removal  of  the  disease  which 
has  prostrated  their   minds.     It   is  not,  therefore,  to  be 
stated  as  an  unqualified  maxim  of  the  law,  *  once  insane, 
presumed  to  be  always  insane,'  but  reference  must  be  had 
to  the  particular  circumstances  connected  with  the  insanity 
of   an    individual,  in   deciding  upon   its   effect   upon  the 
burden  of  proof  or  how  far  it  may  authorize  the  jury  to 
infer  that  the  same  condition  or  state  of  mind  attaches  to 
the  individual  at  a  later  period.     There  must  be  kept  in 
view  the  distinction  between  the  inferences  to  be  drawn  from 
proof  of  an  habitual  or  apparently  confirmed  insanity,  and 
that  which  may  be  only  temporary.     The  existence  of  the 
former,  once  established,  would  require  proof   from   the 
other   party  to  show   a   restoration  or   recovery,  and   in 
the  absence  of  such  evidence,  insanity  would  be  presumed 
to  continue.     But  if  the  proof  only  shows  a  case  of  insanity 
directly  connected  with  some  violent  disease  with  which 
the  individual  is  attacked,  the  party  alleging  the  insanity 
must  bring  his  proof  of  continued  insanity  to  that  point 
of  time  which  bears  directly  upon  the  subject  in  contro- 
versy, and  not  content  himself  merely  with  proof  of  insanity 
at  an  earlier  period." 

RULE  32.  —  The  character  and  habit  of  a  person  is  pre- 
sumed to  continue  as  proved  to  be  at  a  time  past. 

Illustrations. 
I.  It  is  hold  under  a  statute,  that  a  gambler  is  incompetent  to  receiA^e 
letters  of  administration.    It  is  proved  that  on  November  9,  1848,  M. 


RULE    32.]       CONTINUANCE    OF   THINGS    GENERALLY.  181 

resided  in  Santa  Fc,  and  followed  the  profession  of  a  gambler.  In  July, 
1850,  M.  applies  for  letters  of  adniiuistrution  on  his  mother's  estate. 
The  presumption  is  that  M.  is  still  a  gambler,  and  he  is  disqualiQed.^ 

IL  It  is  attempted  to  impeach  the  character  of  P.,  a  witness  at  a  trial. 
A.  and  B.  knew  1'.,  four  years  before,  when  he  resided  at  another  place. 
They  testify  that  P.'s  character  was  then  bud.  Tlie  presumption  is  that 
P.'s  character  remains  the  same.-' 

In  case  II.  it  was  said:  "  It  might  be  too  much  to  .say 
that  a  character  when  once  formed  is  presumed  to  remain 
unchanged  for  life.  Still  the  law,  founded  on  a  full  knowl- 
edge  and  just  appreciation  of  the  general  course  of  human 
affairs,  indulges  a  strong  presumption  against  any  sudden 
chanire  in  the  moral  as  well  as  the  mental  and  social  condi- 
tion  of  man.  When  the  existence  of  a  per.son,  a  personal 
relation  or  a  state  of  things  is  once  established  by  proof,  the 
law  presumes  that  the  person,  relation  or  state  of  things 
continues  to  exist  as  before  till  the  contrary  is  shown,  or 
till  a  different  presumption  is  raised  from  the  nature  of  the 
subject  in  question.  The  opinion,  also,  of  individuals  once 
entertained  and  expressed,  and  the  state  of  mind  once 
proved  to  exist,  are  presumed  to  remain  unchanged,  till  the 
contrary  appears.  Thus  a  person,  proved  once  to  have 
existed,  is,  within  certain  limits,  presumed  still  to  exist.  A 
partnership  once  established  will  be  presumed  to  continue, 
and  where  derangement  or  imbecility  of  mind  has  been 
shown,  its  continuance  is  in  like  manner  presumed  until  the 
contrary  is  shown.  The  principle  on  which  the  presump- 
tion in  such  cases  rests  has,  it  seems  to  me,  a  strong  appli- 
cation to  the  question  now  before  the  court.  It  is  not  look- 
ino-  to  common  experience  in  human  conduct,  generally 
found  to  be  true,  that  a  thorough  change  from  a  bad  to  a 
good  character  is  wrought  within  four  years.  It  may,  and 
it  is  to  be  hoped,  often  does  occur;  but  such  is  not  the  com- 
mon course  of  life.     On  the  contrary  there  is  a  strong  prob- 


1  McMahon  v.  Harrison,  6  N.  Y.  «3  (1852). 

»  Sleeper  v.  Van  Middlesworth,  4  Denio,  431  (1S47) ;  Wood  v.  Mathews,  73  Mo.  4S2 
(1881). 


182  PRESUMPTIVE    EVIDENCE.  [llULE    33. 

al)ility  that  one  whose  general  character  was  bad  four  years 
since  is  still  of  doubtful  or  disparaged  fame.  So  much  at 
least  may  be  asserted  without  evincing  the  feeling  of  a  mis- 
anthropist or  an  unseemly  lack  of  charity." 

The  fact  that  A.  was  frequently  seen  to  purchase  gro- 
ceries from  B.,  who  was  the  only  grocer  in  the  place,  does 
not  raise  the  presumption  that  he  purchased  his  entire  sup- 
ply from  him,  so  as  to  authorize  proof  of  the  amount  of 
groceries  necessary  for  his  family,  or  actually  consumed  by 
them  during  the  time  such  purchases  were  made.^ 

RULE  33.  —  Specific  acts  done  in  other  cases  do  not 
raise  tlie  inference  that  a  similar  act  was  done  in 
another  case,  and  evidence  of  them  is  inadmissible. 

Illustrations. 

I.  The  question  is  whether  A.  entered  into  a  contract  in  a  certain 
form  with  B.  Evidence  that  A.  had  entered  into  contracts  in  this  form 
with  other  persons  Is  inadmissible. " 

II.  A  postmaster  is  sued  for  negligence  by  which  a  letter  of  C.'s  was 
lost.  Evidence  of  specific  acts  of  negligence  in  relation  to  other  letters 
is  inadmissible  .3 

III.  The  question  is  whether  a  sale  of  guano  was  conditional  and  not 
to  be  paid  for  if  not  of  a  certain  quality.  The  fact  that  the  seller  had 
made  other  sales  on  this  condition  is  irrelevant.* 

IV.  S.  is  sued  for  selling  diseased  meat.  Evidence  that  several  years 
previous  S.  had  sold  a  diseased  hog  is  offered.  The  evidence  is  inadmis- 
sible.* 

V.  A.  sues  B.  for  articles  furnished  him  on  credit.  B.  contends  that 
the  articles  were  furnished  to  the  firm  of  W.  &  T.  Evidence  that  A.  had 
previously  refused  to  take  W.  &  T.'s  note  for  similar  articles  furnished  to 
one  J.  is  inadmissible .« 

VI.  A.  sues  B.  for  work  and  labor.  As  evidence  of  payment,  B.  offers 
to  show  that  other  laborers  were  employed  by  him  at  the  same  time,  and 


1  Scott  V.  Coxe,  20  Ala.  204  (1852). 

2  Delano  v.  Goodwin,  41  N.  H.  205  (1868). 

3  Wentworth  v.  Smith,  44  N.  H.  419  (1862) ;  Robinson  v.  Railroad,  7  Gray,  503. 

*  HollinKham  v.  Head,  4  C.  B.  (N.  s.)  388. 
»  True  V.  Sanborn,  27  N.  II.  383  (1853). 

•  Swainecolt  Machine  Co.  v.  Walker,  22  N.  H.  457  (1851). 


RULE    33.]       CONTINUANCE   OF   THINGS    GENERALLY. 


183 


on  the  same  kiml  of  work  as  A.,  and  that  these  laborers  were  paid.     This 
evidence  is  irrelevant.' 

VII.  B.  claims  that  A.  promised  to  pay  his  (B.'s)  debt  against  C. 
The  fact  that  A.  has  previonslj',  under  similar  circumstances,  promised 
D.  to  pay  his  (D.'s)  debt  against  C.  raises  no  presumption  that  he  prom- 
ised to  pay  B.'s." » 

«'  The  plaintiff  claims,"  it  was  said  in  case  IV.,  '*  tliat  the 
jury  should  have  been  allowed  to  make  the  presumption  of 
fact  of  the  unwholcsomcness  of  the  beef  from  the  fact  that 
the  pork  sold  proved  to  be  in  an  unwholesome  condition. 
If  the  presumption  could  properly  be  made,  it  must  bo 
upon  the  ground  that  it  is  found  among  those^  natural  pre- 
sumptions that  depend  upon  their  own  natural  force  and 
efficacy,  in  generating  belief  or  conviction  in  the  mind,  as 
derived  from  those  convictions  which  are  pointed  out  by 
experience.  ♦  *  *  Is  there  seen  to  be  such  an  intimate 
connection  between  the  fact  proved  in  this  case,  and  the 
fact  claimed  to  be  inferred  from  it,  as  to  lead  naturally  to 
the  conclusion  of  its  existence?  Is  the  one  fact  to  be 
inferred  from  the  other  as  a  matter  of  fair  argument  and 
reasoning?  Is  the  inference  so  far  natural  and  legitimate, 
and  according  to  the  experience  of  mankind  as  to  lead  to 
the  inference  of  its  clear  probability?  It  would  be  the 
height  of  absurdity  to  hold  that  the  sale  of  an  article  at  a 
certain  period  which  proved  to  be  bad,  of  which  the  seller 
might  have  had  no  knowledge  whatever,  would  form  a 
proper  and  legal  ground  of  inference  that  another  and  dif- 
ferent article  of  property,  sold  several  years  after,  by  the 
same  person  to  a  different  purchaser,  was  of  bad  quality 
also.  In  such  case,  there  would  manifestly  be  wanting  that 
connection  shown  by  experience  between  cause  and  effect, 
which  lies  at  the  foundation  of  the  presumption  to  be 
made." 

In  case  VI.  the  testimony  offered  had  been  admitted  on 
the  trial,  but  the  Supreme  Court  held  erroneously.     "  The 

1  Filer  v.  Peebles,  8  N.  II.  226  (1836). 

2  Thelps  V.  ConaiU,  30  Vt.  277  (1S5S). 


18 -J:  PRESUIIPTIYE   EVIDENCE.  [rULE   34. 

testimony,"  said  tlie  court,  "  seems  to  have  been  admitted 
directly  against  the  rule  that  provides  that  neither  the  decla- 
rations nor  any  other  acts  of  those  who  are  mere  strangers 
are  admissible  in  evidence  against  any  one  as  affording  a 
presumption  against  them.  It  has  been  holden  that  the 
time  at  which  one  tenant  pays  his  rent  is  not  evidence  to 
show  at  what  time  another  tenant  of  the  same  landlord  pays 
his  rent.  *  *  *  There  is  no  such  relative  situation 
shown  as  to  these  parties,  as  to  raise  any  legal  presumption 
that  payment  to  one  tends  to  show  a  payment  to  the  other." 
In  case  VII.  it  was  said :  **  There  was  no  legal  connection 
between  the  two  cases.  It  did  not  follow,  by  any  means, 
that  because  the  circumstances  of  the  two  cases  were  simi- 
lar or  identical  even,  the  defendants,  by  assuming  one  debt 
were  bound  to  assume  the  other.  Nor  is  there  any  legal 
probability  that  he  would  pay  one  because  he  agreed  to  pay 
the  other.  We  are  apt  to  think  because  the  cases  are  alike 
that  the  one  helps  prove  the  others.  But  they  have  no 
more  legal  connection  than  the  giving  a  note  to  one  man 
hp,s  with  proving  that  the  same  party  also  gave  his  note  to 
another.  If  the  man  bought  on  credit  once,  it  is  more 
probable,  perhaps,  that  he  will  again,  but  one  such  case 
could  not  be  shown  to  establish  the  others,  for  the  reason 
that  there  is  no  necessary  connection  between  them.  To 
have  one  fact  prove  another  there  must  be  a  necessary  or 
probable  connection  between  the  two." 

RULE  34.  — But  the  habit  of  an  individujil  being  proved 
he  is  prcsvimed  to  act  in  a  particular  case  in  accord- 
ance with  that  habit. 

Illustrations. 

I.  The  question  is  whether  a  certain  person  had  given  a  receipt  in  a 
certain  case.  lie  testifies  that  although  he  can  not  remember  that  he 
gave  a  receipt  in  this  particular  case,  yet  he  usually  gave  receipts  in  such 
case.  His  evidence  is  admissible  aud  raises  the  presumption  that  he 
gave  the  receipt  in  this  case.^ 

1  Eureka  Ins.  Co.  v.  Robinson,  5G  Ta.  St.  250  (18CT),  overruling  Schoneman  v. 
Fcglci-,  H/d.376(lS50). 


RULE    34.]       CONTINUA>XE    OF   THINGS    GEXEKALLY.  185 

II.  The  question  is  whetlier  notice  of  additional  in.surance  bad  bcea 
given  by  tlie  insured  to  tlie  insurer.  The  former  is  unable  to  spealc  po.si- 
tiveiy  but  testified  that  it  was  always  his  custom  to  do  so  in  such  cases. 
His  evidence  is  admissible.^ 

III.  The  question  is  whether  C,  the  attorney  for  the  plaintiff  in  a 
former  suit,  had  directed  T.,  an  oflicer  to  whom  C.  gave  a  writ  for  ser- 
vice, to  take  the  receipt  of  M.,  and  not  remove  the  property.  T.  testifies 
that  such  directions  were  given;  C.  tliat  they  were  not.  Evidence  that 
the  uniform  habit  of  C.  as  an  attorney  in  delivering  writs  of  attachment 
to  officers  for  service  was  not  to  give  instructions  to  them  to  talie  receipts, 
but  to  abstain  from  giving  any  Instructions  in  regard  thereto,  is  admis- 
sible, and  will  raise  the  inference  that  C.  had  not  done  so  in  the  particu- 
lar case.^ 

IV.  The  question  is  whether  a  railroad  has  received  certain  cotton  for 
transportation.  The  company's  agent  testilles  that  it  is  the  custom 
always  to  weigh  and  mark  goods  taken  for  transportation.  The  cotton 
in  question  was  not  marked.  The  presumption  is  that  it  was  not  received 
by  the  carrier.^ 

v.  The  question  is  whether  A.  made  a  certain  deposit  on  a  certain 
day,  which  A.  alleges  and  the  bank  denies  was  made.  The  bank  cashier 
testifies  that  it  is  his  unvarying  habit  to  enter  all  the  deposits  in  the  daily 
receipts.  A.'s  deposit  does  not  appear  in  the  list  of  receipts  for  that  day. 
The  presumption  is  that  A.  made  no  deposit  as  he  alleges.* 

YI.  A  suit  is  brought  for  the  loss  by  fire  of  a  quantity  of  rice  taken  to 
a  mill  to  be  ground.  A.  undertakes  to  prove  by  parol  the  amount  of  the 
rice  taken  to  the  mill.  The  mill  owner  proves  that  it  is  his  usual  custom 
to  give  written  receipts  for  rice  received  by  him.  The  presumption  is 
that  the  receipt  was  so  delivered,  and  A.  can  not  prove  the  quantity  by 
parol  without  accounting  for  the  non-production  of  the  receipt.^ 

VII.  The  question  is  whether  B.  accepted  a  draft  by  parol.  The  habit 
of  B.  in  accepting  drafts  to  do  so  in  writing  is  proved.  The  presump- 
tion is  that  B.  did  not  accept  this  draft  by  parol. « 

VIII.  The  question  is  whether  a  certain  person  was  personally  sers'ed 
with  a  notice  of  dishonor  or  protest.  The  clerk  of  the  bank  testifies  that 
it  is  his  practice  to  do  so.  The  presumption  is  that  it  was  done  in  this 
case.^ 

1  Eureka  Ins.  Co.  v.  Robinson,  56  Pa.  St.  35C  (1867). 

2  Hine  v.  Ponicroy,  30  Vt.  211  (1S50). 

»  Vaughn  v.  Ilaleigh,  etc.,  K.  Co.,  G8  N.  C.  11  (1S68),  and  see  Kershaw  r.  Wright, 
115  Mass.  361. 

*  Meighen  f.  Bank,  25  Penn.  St.  2SS. 
6  Ashe  V.  DcUosset,  8  Jones  (L.)  240. 
e  Smith  v.  Clark,  12  Iowa,  32. 
f  Shove  r.  Wilej-,  18  Pick.  653. 


186  PRESUMPTIVE   EVIDENCE.  [rULE   34. 

IX.  The  question  is  whether  a  notice  was  mailed  by  a  notary.  From 
the  habit  of  tlie  notary  to  mail  notices  in  all  cases  the  presumption 
arises  that  it  was.^ 

X.  The  question  is  whether  D.  had  paid  his  taxes  in  1832  and  1833. 
The  receipts  of  taxes  issued  to  D.  for  nearly  twenty-five  years,  and 
covering  nearly  all  the  period  except  these  two  years  are  shown.  The 
presumption  is  that  D.  paid  the  taxes  in  these  two  years. '^ 

Case  I.,  where  a  contrary  opinion  was  expressed,  was 
overruled  in  case  H.  where  it  was  said:  "It  is  evident 
that  (in  case  I.)  the  matter  was  regarded  of  no  importance, 
as  in  truth  it  was  in  that  case.  No  reasons  were  given  and 
no  authority  was  cited.  We  think  it  not  uncommon  in 
practice  to  corroborate  the  defective  memory  of  a  witness 
by  proof  of  what  was  his  habit  in  similar  circumstances. 
Thus  a  subscribing  witness  to  a  will  or  bond,  if  unable  to 
recollect  whether  he  saw  the  testator  or  obligor  sign  the 
instrument  or  heard  it  acknowledged,  is  often  permitted  to 
testify  to  his  own  habit,  never  to  sign  as  a  witness  without 
seeing  the  party  sign  whose  signature  he  attests,  or  hearing 
that  signature  acknowledged,  and  it  seems  to  be  persuasive 
and  legitimate  supporting  evidence." 

In  case  III.  the  trial  court  had  rejected  the  evidence,  but 
its  rulings  were  reversed  on  appeal.  *' There  was  a  con- 
flict," said  the  court,  "between  C.  and  T.,  C.  testifying 
that  he  did  not,  against  T.  testifying  that  he  did.  In  such 
cases  it  is  commonly  claimed  that  the  testimony  of  him  who 
testifies  affirmatively  that  an  act  was  done,  or  an  event  hap- 
pened (other  things  being  equal),  is  less  likely  to  be 
erroneous,  and  is  more  reliable  than  the  testimony  of  him 
who  testified  that  such  act  was  not  done  or  such  an  event 
did  not  happen.  Ordinarily  it  is  said,  and  justly,  that  he 
who  testifies  to  the  negative  may  have  forgotten  a  fact  that 

1  Shove  V.  Wiley,  18  Pick.  561;  Trabue  v.  Sayre,  1  Bush,  131;  Miller  v.  Ilacklcy, 
6  Johns.  38:5;  Bell  v.  Ilagarstown  Bk.,  7  Gill.  227;  Union  Bk.  v.  Stone,  CO  Me.  5'JJ; 
Coyle  V.  Gozzler,  2  Cranch  C.  C.  G25;  Cookendorfer  v.  Preston,  4  How.  317.  Butit 
has  been  held  in  Kcw  York  tliat  proof  of  the  ^general  character  of  a  person  as  a 
usurer  is  not  a  proper  foundation  for  presuming  a  contract  by  him  to  be  usurious  in 
a  particular  case.    Jackson  v.  Smith,  7  Cow.  717  (1827). 

2  C'oxc  V.  Deringer,  82  Penn.  St.  258  (1876). 


RULE   35.]       CONTINUANCE   OF   THINGS    GENERALLY.  187 

actually  took  place,  while  he  "vvho  testifies  affirmatively  can 
not  remember  a  fact  that  never  did  take  place,  and  so  upon 
common  principle,  affecting  and  governing  the  credit  and 
weight  to  be  given  to  testimony  thus  in  conflict,  it  should 
rather  bo  held  that  the  one  had  forgotten  than  that  the 
other  had  testified  falsely.  It  seems  proper  as  grounded  in 
sound  principle,  and  sanctioned  by  long  usage,  that  such 
affirmative  acts  and  circumstances  as  are  connected  with  or 
kindred  to  the  fact  in  controversy,  and  so  related  to  it  as  to 
affect  the  conduct  or  the  memory  of  the  witness  as  to  the 
main  fact  may  be  testified  to  by  him  as  bearing  upon  the 
likelihood  of  his  not  having  forgotten  nor  testified  mistak- 
ingly  as  to  the  main  fact.  It  is  conceded,  and  many  cases 
are  cited  which  show  that  evidence  of  the  character  offered 
in  this  case  only  as  corroborative  has  been  received  as  per- 
tinent and  adequate  of  itself  to  prove  a  material  fact,  as  in 
the  case  of  subscribing  witnesses  w^ho  have  forgotten  about 
having  witnessed  the  execution  of  a  paper  in  question,  as 
in  the  case  of  notices  of  presentment,  protest,  or  the  like, 
when  the  witness  has  no  recollection  of  the  fact,  but  testi- 
fies to  his  uniform  habit  and  course  of  business  in  that 
respect  and  to  his  belief  grounded  upon  it,  and  thus  proves 
the  material  fact  about  which  he  has  no  active  memory." 
In  case  X.  it  was  said:  *'  This  precise,  methodical,  and 
regular  payment  of  the  taxes  on  all  the  five  tracts  early  in 
the  year  was  strong  evidence  of  D.'s  punctuality.  It 
proved  his  deep  interest  in  the  subject,  which  was  not  likely 
to  fail  in  the  performance  of  his  duty  to  protect  himself. 
It  was  a  very  natural  conclusion  that  a  man  who  always 
paid  his  taxes  promptly  in  biennial  periods  previous  to  the 
time  of  sale  would  have  iDaid  them  in  time  in  1832  and 
1833." 

RULE    35 .  —  But  a  future    continuance    is    never   pre- 
sumed. 

Illustrations. 

I.  A.  brings  an  action  against  B.  for  enticing  his  minor  son  to  enlist 
lu  the  army.    The  question  is  as  to  the  measure  of  damages,  -whether  A. 


188  PRESUMPTIVE  EVIDENCE.        [rULE  35. 

can  recover  for  the  loss  of  service  until  the  end  of  his  son's  term  (i.e., 
three  years  or  the  end  of  the  war,  which  at  the  time  is  raging),  or  only 
to  the  time  of  the  trial.  Held,  the  former,  as  the  law  can  not  presume 
that  the  war  will  continue  to  exist  for  three  years  or  for  any  period.^ 

II.  lu  a  suit  for  divorce  it  is  shown  that  certain  letters  were  written 
by  the  wife  to  a  witness,  tliree  of  them  containing  confessions  of  adul- 
tery. These  letters  were  destroyed,  while  two  subsequently  received 
were  handed  to  the  custody  of  a  third  person.  Held,  that  there  was  no 
presumption  that  these  last  letters  were  written  on  the  same  subject  or 
contained  similar  confessions.* 

"The  enlistment,"  it  was  said  in  case  I.,  "  was  to  end 
with  the  war,  and  the  law  will  not  presume  in  such  a  case 
that  the  war  will  continue  three  years.  The  law  presumes 
that  a  fact  continuous  in  its  character  still  continues  to 
exist  until  a  change  is  shown,  and  so  a  state  of  war  proved 
to  exist  three  years  ago  is  presumed  in  law  to  be  still  exist- 
ing, unless  the  contrary  be  shown,  but  the  law  indulges  no 
presumption  at  the  present  time  that  it  will  continue  three 
years  longer.  On  the  contrary  war  is  not  the  normal,  but 
an  exceptional  state  of  society,  and  is  generally  regarded  as 
a  thing  not  to  be  desired  either  by  individuals  or  nations. 
Peace  is  desirable  and  not  war,  and  the  presumption  is  that 
men  and  nations  will  do  that  which  is  for  their  interests 
and  act  with  reference  to  them.  The  law,  however,  will 
not  indulge  in  any  presumption  in  regard  to  a  future  con- 
dition of  war  or  peace.  God  alone  knows  what  the  future 
has  in  store  for  nations,  and  finite  courts,  whose  visions 
can  not  penetrate  the  future,  should  not  speculate  as  to  its 
probabilities,  much  less  attempt  to  solve  them  and  make 
them  the  basis  of  their  judgment.  The  rule  is  reasonable 
which  presumes  the  continuance  of  an  existing  fact  at  the 
time  of  the  trial,  for  the  other  party  can  overthrow  it  by 
proof  if  it  be  not  so  ;  but  when  it  presumes  a  future  con- 
tinuance the  party  has  no  ability  to  unfold  the  future  and 
give  an  answer  by  his  proof." 

In  case  II.  it  was  said:    "  It  was  presumed  that  such  let- 

1  Covert  V.  Gray,  34  How.  Pr.  450  (1866). 

2  strong  V.  Strong,  1  Abb.  Pr.  (n.  S.)  238  (1865). 


RULE    3G.]       CONTINUANCE    OF   THINGS    GENERALLY.  189 

ters,  being  part  of  a  scries  as  they  are  called,  must  have 
related  to  the  same  subject.  I  know  of  no  principle  upon 
which  every  friendly  letter  between  the  same  parties  is  to 
be  presumed  in  law  to  continue  to  advert  to  some  one  sub- 
ject, or  that  confessions  of  guilt  on  that  subject  may  be 
supposed  to  be  reiterated  or  protestations  of  innocence  in- 
serted in  every  one  ;  every  thing  is  some  time  or  other 
brought  to  an  end,  and  every  subject  is  sometimes  absent 
from  our  thoughts  or  writings.  Even  a  friend  docs  not 
always  continue  to  be  confessor,  and  there  is  no  experience 
of  mankind  which  warrants  the  conclusion  adopted  in  this 
case." 

KULE  3G. — An  admission  made  by  a  party  to  a  suit, 
or  his  attorney,  that  a  certain  fact  exists  and  need 
not  bo  proved,  does  not  dispense  Avith  proof  of  the 
existence  of  that  fact  subsequent  to  the  date  of  the 
admission. 

Illustration. 

I.  A.  sues  C.  as  editor  of  a  paper  for  a  libel.  On  February  13th,  B.'s 
attorney  files  an  admission  that  B.  is  editor.  On  May  19th,  another  libel 
on  A.  appears  in  the  same  paper,  and  A.  attempts  to  introduce  this 
libel  in  the  action  for  the  first,  as  showing  the  motive  of  B.  Held,  that 
A.  must  first  show  that  B.  was  editor  of  the  paper  at  the  time.^ 

In  case  I.,  on  the  second  article  being  offered,  Mr. 
Brougham,  who  was  counsel  for  B.,  objected  to  its  intro- 
duction on  the  ground  that  there  was  no  evidence  that  B. 
was  the  author  of  it.  *' We  have  only  admitted  him," 
said  he,  *'  to  be  editor  up  to  the  13th  of  February,  and  this 
was  published  afterward."  Mr.  Scarlett  (afterward  Chief 
Baron  Abinger)  argued  that  having  shown  that  B.  was  once 
editor,  it  lay  on  him  to  show  that  he  did  not  continue  so. 
But  Lord  Tenterden,  C.  J.,  ruled  against  him.  "  I  do  not 
think,"  said  he,  "that  I  can  hold  that  this  admission  can 
be  extended  to  a  publication  after  its  date.     I  consider  that 

1  McLeod  V.  Wakeley,  3  C.  &  r.  311  (1S28). 


lOO  PRESTOIPTIVE   EVIDENCE.  [rULE    37. 

the  admission  goes  down  to  its  date,  but  no  further,"  and 
the  evidence  was  rejected. 

RULE  37.  — And  a  presumption  is  not  retrospective. 

Illustrations. 

I.  A  deed  is  signed  in  1854  by  Henrietta  C,  her  maiden  name.  There 
is  evidence  that  in  18G0  she  was  known  as  Mrs.  D.  There  is  no  pre- 
sumption that  she  was  married  in  1854.1 

II.  Harriet  G.  executes  a  deed  in  1854.  The  question  is  whether  she 
was  married  at  the  time.  There  is  evidence  that  she  was  then  over 
twent\'-five  years  old.  This  raises  no  presumption  that  she  was  then 
married.'' 

III.  Depositions  out  of  the  State  are  allowed  to  be  taken  before  "  any 
judge  or  justice  of  the  peace."  A  commission  is  issued  to  Texas;  depo- 
sitions are  taken  before  one  B.  on  June  6,  1848;  and  it  is  officially 
certified  on  June  29th  that  B.  is  a  justice  of  the  peace.  There  is  no  pre- 
sumption from  this  that  B.  held  that  office  on  June  6th.' 

IV.  A.  made  a  contract  in  1860.  In  1804  he  was  insane.  There  is  no 
presumption  that  he  was  insane  in  I860.* 

V.  M.  committed  a  burglary  in  1880  in  the  house  of  J.  In  1881  M.  was 
tried  and  it  appeared  on  the  trial  that  J.  was  married.  This  raises  no 
presumption  that  J.  was  married  at  the  time  of  the  burglary.^ 

«'  The  presumption  of  coverture,"  it  was  said  in  case  I., 
'*  is  prospective  not  retrospective.  If  we  shall  presume 
for  the  purpose  of  avoiding  the  deed  executed  by  her  in  her 
maiden  name,  that  she  was  married  six  years  before  we 
have  any  evidence  that  she  was  married  at  all,  we  might 
with  the  same  propriety  presume  that  she  had  been  married 
sixteen  years.     Such  is  not  the  law." 

In  case  III.  it  was  said:  *'  When  the  existence  of  a  sub- 
ject-matter or  relation  has  been  established,  its  continuance 
may  be  presumed.  But  here  we  are  called  upon  to  pre- 
sume from  the  fact  that  a  person  was  qualified  to  act  as  a 


1  Erskine  v.  Davis,  25  111.  251  (1861). 
«  Erskine  v.  Davis,  25  111.  251  (1801). 
»  Bareli  v.  Lytle,  4  La.  Ann.  .557  (1849). 
*  Taylor  v.  Cresewell,  45  Md.  422. 
6  Murdock  v.  State,  68  Ala.  667  (1881). 


RULE    38.]       CONTINUANCE    OF   THINGS   GENERALLY.  101 

justice  at  a  particular  date,  that  he  was  qualified  so  to  act 
at  a  period  anterior  to  that  date.  Such  a  presumption  is  not 
supported  either  by  reason  or  authority."  In  maritime  law, 
a  different  rule  seems  to  prevail.  Thus  a  ship  soon  after 
leaving  port  becomes  so  leaky  and  disabled  as  to  be  unable 
to  proceed.  There  is  no  evidence  that  she  encountered  any 
great  storm  or  peril  of  the  sea.  The  presumption  is  that 
she  was  unscaworthy  when  she  sailed."  ^ 

In  case  V.  it  was  said:  <'  "When  the  existence  of  a  per- 
sonal relation  or  a  state  of  things  continuous  in  its  nature 
is  once  established  by  proof,  the  law  presumes  that  such 
status  continues  to  exist  as  before,  until  the  contrary  is 
proved,  or  until  a  different  presumption  is  raised  from  the 
nature  of  the  subject  in  question.  But  this  presumption 
can  not  be  permitted  to  operate  retrospectively,  so  as  to 
infer  the  prior  existence  of  coverture  or  other  like  relation- 
ship from  proof  of  its  present  existence.  It  may  be  that 
the  parties  contracted  the  relationship  within  a  few  days 
before  the  trial." 

RULE  38.  —  In  case  of  conflicting  presumptions,  the 
presumption  of  the  continuance  of  thing^s  is  weaker 
than  the  presumption  of  innocence. 

Illii^tration. 

I.  A  bankrupt,  in  1837,  makes  a  scheduled  return  of  his  property.  It 
is  afterward  discovered  that  in  1835  he  owned  certain  property  which 
was  not  included  in  the  schedule.  There  is  no  presumption  tliat  he 
owned  this  property  in  1837,  for  the  presumption  is  that  he  did  not  com- 
mit a  fraud.' 


1  Wright  V.  Orient  Ins.  Co.,  6  Bosw.  270  (ISOO) ;  1  Arnould  on  Ins.  6S6,  sec.  255. 
=  Powell  V.  Knox,  16  Ala.  634  (1319). 


CHAPTER    IX. 

THE  PEESUMPTION  OF  LIFE. 

KtJLE  39.  — liove  of  life  is  presumed^  (A. ),  antl  a  person 
proved  to  have  been  alive  at  a  former  time  is  pre- 
sumed to  be  alive  at  the  present  time  ^  until  bis  death 
is  proved  or  a  presumption  of  death  arises  (B.). 

Illustrations 


I.  H.  is  found  dead.  An  examination  reveals  that  his  death  was 
caused  by  taking  arsenic.  H.'s  life  is  insured,  and  the  question  arises 
■whether  his  death  was  caused  by  suicide  or  accident.  The  presumption 
is  that  it  was  caused  by  the  latter .^ 

II.  W.  is  killed  by  a  railroad  engine.  The  question  is  whether  W. 
could  or  could  not  have  escaped  the  peril  if  he  had  desired  to.  The  pre- 
sumption is  that  he  could  not.* 

III.  A  person  is  found  dead.  The  presumption  is  that  his  death  was 
natural  or  accidental.^ 

IV.  A.  is  found  drowned.  The  presumption  is  that  the  drowning  was 
accidental." 

In  case  I.  it  was  laid  down  that  where  there  is  the  occur- 
rence of  death  merely,  and  no  evidence  upon  the  subject, 
the  presumption  is  that  it  was  from  natural  causes,  and  not 
an  act  of  self-destruction.     This  presumption  prevails  in 


1  Illinois  Cent.  U.  Co.  v.  Cragin,  71  111.  184  (1873). 

"  King  V.  Fowler,  11  Pick.  302  (1831) ;  Innes  v.  Campbell,  1  Rawle,  375  (1829) ;  Ful- 
weiler  v.  Baugher,  15  S.  &  R.  45  (1826) ;  Pennefather  v.  Pennefather,  Irish  Rep.  6  Eq. 
171  (1872) ;  O'Gara  v.  Eisenlohr,  38  N.  Y.  290  (1868) ;  Battin  v.  Bigelow,  1  Pet.  C.  C.  453 
(1871) ;  Hall  v.  Com.,  Hardin  (Ky.),  480  (1808) ;  Lowe  v.  Foulke,  103  HI.  58  (1882). 

8  Guardian  Life  Ins.  Co.v.  Hogan,  80  111.  35  (1875). 

••  Way  V.  Illinois  Central  R.  C,  40  la.  342  (1875) ;  Morrison  v.  New  York  Cent.  R. 
Co.,63N.  Y.643  (1875). 

6  Germain  v.  Brooklyn  Life  Ins.  Co.,  26  Hun,  604  (1882).  But  this  presumption 
does  not  extend  to  an  insane  vian,  found  dead.    Id. 

0  Continental  Ins.  Co.  v.  Delpeuch,  82  Pa.  St.  235  (1876). 

(192) 


RULE    31).]  THE   PRESUMPTION   OF   LIFE.  103 

the  absence  of  proof  or  in  cases  where  the  evidence  on 
/this  point  is  equally  balanced. 

In  case  II.  the  instincts  prompting  the  preservation  of 
life  were  said  to  be  properly  thrown  into  the  scale  of  evi- 
dence, like  the  presumptions  of  sanity  and  innocence. 

In  case  III.  it  was  said:  "The  party  alleging  suicide 
must  prove  it.  The  mere  fact  of  death  in  an  unknown 
manner  creates  no  legal  presumption  of  suicide.  Upon 
evenly  balanced  testimony  the  law  assumes  innocence  rather 
than  crime.  Preponderating  evidence  is  necessary  to 
establish  the  latter." 

B. 

I.  In  1831  the  State  of  Georgia  granted  a  tract  of  land  to  one  T.,  avIio 
had  been  a  soUlior  in  the  revolutionary  war.  In  an  action  brought  in 
1857  there  is  no  presumption  thatT.  is  dead  at  this  last  date.^ 

II.  A.,  an  infant,  and  his  father  executed  a  deed  binding  A.  to  C. 
for  a  term  of  years.  Subsequently  the  infant  brings  an  action  on  the 
deed.  There  is  no  proof  that  the  father  was  alive  at  this  time.  The  pre- 
sumption of  law  is  that  C.  was  alive.'* 

III.  A  patent  of  land  is  produced  granted  to  0.  in  IC'Jo.  It  can  not  be 
presumed  that  O.  was  not  alive  in  1773.' 

IV.  It  was  shown  in  1843  that  H.,  whose  deposition  in  a  case  was 
taken  in  1822,  was  then  fifty-nine  years  old,  and  in  bad  health.  He  lived 
then  in  New  York  City.  He  is  not  shown  to  have  ever  left  there,  but  his 
address  is  not  now  (1843)  known  at  the  post-office,  nor  is  it  in  the  city 
directory.    Thea-e  is  no  presumption  that  H.  is  now  (1843)  dead.* 

Y.  In  an  action  on  a  recognizance  given  by  M.,  the  plea  is  that  since  its 
execution  M.  has  died.  The  burden  of  proving  the  death  of  M.  is  on  the 
defendant.^ 

YI.  J.  R.  T.,  ayoung  sailor,  was  last  seen  in  the  summer  of  1840  going 
to  Portsmouth  to  embark  on  board  ship.  He  was  not  subsequently  seen. 
His  grandmother  died  in  March  1841.  The  presumption  is  that  he  sur- 
vived his  grandmother.*' 


1  Watso.n  r.  Tindal,  24  Ga.  494  (1858). 

s  Letts  r.  lirooks,  Ilill  &  Denio,  361  (1842). 

3  lliuumond  v.  Inloes,4Mil.  110  (1853). 

*  IlcIIall.l  Wall.  jr.  85  (18-13). 

6  Wilson  V.  Ilo.lges,  2  East,  :;13  (1802). 

«  lie  Tiudall's  Tinst,  30  Bcav.  151  (ISGl). 

13 


104  PEESUMPTIVE    EVIDEXCE.  [rULE    31). 

VII.  Ill  1732  a  deposition  of  a  witness  made  in  1G82  is  offered.  There 
being  no  proof  that  tlie  ^Yitness  is  dead,  the  presumption  is  he  that  is  still 
alive,  and  the  deposition  is  inadmissible. i 

VIII.  A.  is  shoAvn  in  a  ease  tried  in  1837  to  have  been  alive  in  the  j'car 
1034.     Tlie  law  will  not  infer  that  A.  is  dead  without  some  evidence. ^ 


In  case  III.  the  court  said;  "  The  death  of  a  person  may 
be  presumed  after  a  long  lapse  of  time,"  without  attempting 
to  say  what  that  time  was.  But  on  the  other  hand,  it  laid 
it  down  that  '*  when  persons  are  known  to  have  survived 
ninety  and  one  hundred  years  we  can  not  say  that  others 
have  died  at  an  earlier  asre  without  some  evidence  on  the 
subject."  In  a  subsequent  case  in  the  same  State  ^  the 
court  was  equally  contradictory.  "  Though  there  is  no 
leg.il  presumption  of  the  period  when  death  occurred  or  up 
to  which  life  endured,"  said  Alvey,  J.,  "yet  it  may  be  pre- 
sumed that  Jacob  Giles  died  before  the  bringing  of  this 
suit,  because  it  would  be  contradictory  to  the  ordinary 
course  of  nature  that  he  should  be  living  at  that  time."  It 
nowhere  appears  in  the  opinion  at  what  date  the  suit  was 
instituted.  John  Giles,  the  father  of  Jacob,  died  in  1725; 
he  had  eight  children,  of  whom  Jacob  was  the  second.  In 
1732  Jacob  made  a  deed  of  the  land  in  controversy.  Alvey, 
J.,  delivered  the  judgment  in  which  these  views  were 
expressed  in  the  year  18G8.* 

Incase  rv.  Mr.  Justice  Baldwin  said:  "  The  life  of  a 
person  once  shown  to  exist  is  intended  to  continue  till  the 
contrary  be  proved,  or  is  to  be  presumed  from  the  nature 
of  the  case.  Direct  proof  is  not  here  offered.  Are  the 
facts  which  are  shown  sufficient  to  supply  its  place?  The 
witness,  if  alive,  is  eighty  years  old;  an  age  that  we  may 
admit  is  an  advanced  one  ;  but  is  yet  one  to  Avhich  life  is 
occasionally  —  nay,    not    unfrequently,  prolonged.       The 

1  Benson  v.  Olive,  2  Strange,  920  (1732). 

2  Atkins  V.  Warrington,  Best  Ev.  412-  Cliitty  Pldg.  616. 

3  Spriggi'.  Moalc,  23  Md.  50S  (ISOS) 

*  And  see  Jarboe  v.  McAfee  7  B.  Monr.  2S2  (18i7). 


r.ULB    39.]  THE   riiESUMFXION-   OF   LIFE.  I'Jo 

jeourt  can  not  therefore  presume,  as  of  course,  that  Hall  has 
not  roac-hed  it.  Lord  Ilale  has  indeed  said  that  it  shall  be 
presumed  life  ■will  not  exceed  ninety-nine  years, ^  and  it 
may  be  inferred  that  a  man,  if  of  any  age  already,  "U'ill  not 
live  eighty  years  besides;^  but  Chief  Baroa  Keynolds 
refused  to  presume  a  witness  dead  who  had  been  examined 
sixty  years  before,  there  having  been  no  proper  searches 
or  inquiry  made  after  him.  Keither  does  the  circumstance 
t!iat  the  witness  was  in  bad  health  in  1722  infer,  as  neces- 
sary consequence,  that  he  is  now  dead.  The  difficulty  is 
here  —  that  the  expression  '  bad  health  '  is  indeterminate. 
There  are  manifold  sorts  of  bad  health,  and  many  degrees 
in  most  of  them.  Show  me  that  Hall  was  the  subject  of 
some  quick,  consuming  disease,  or  of  any  specific  malady 
at  all,  and  j^ou  will  change  the  case.  Suppose  that  his  '  bad 
health  '  was  temporary,  or  that  the  expression  means  only 
that  his  health  was  not  robust.  A  man  in  bad  health  at  one 
time  may  recover  afterward  ;  that  depends  entirely  upon 
the  nature  of  his  disorder  and  mode  of  treatment  and  vigor 
of  his  constitution.  And  the  valetudinarian  often  prolongs 
an  existence  beyond  him,  who  in  the  carelessness  of  health, 
may  be  suddenly  cut  down.  In  the  case  cited  from  13 
Vesey  ^  the  health  was  very  bad  (the  chancellor  speaks  of  it 
as  '  desperate'  ),  and  the  man  was  to  have  been  heard  of  six 
months  after  he  went  away,  several  yoavs  before.  *  *  * 
Is  the  case  essentially  changed  by  the  inquiries  made  at  the 
post-office?  This  difficult}''  occurs  —  that  there  is  nothing 
t;)  show  that  H.  was  a  person  likely  to  be  known  there; 
that  he  was  in  the  habit  of  receiving  letters,  or  that  he  was 
a  person  of  any  note  or  consequence.  It  is  no  presump- 
tion of  law  that  the  runners  at  the  post-office  know,  so  as 
to  answer  at  first  inquiry,  the  name  and  residence  of  every 
person  in  a  populous  city.  Remarks  of  a  similar  sort 
apply  to  the  inference  which  would   be    drawn  from  the 


1  Wealc  r.  Lonicr,  Pollex.  55. 

'  Xappcrr.  Saunders,  Hiitton,  US;  Kecblc's  Case,  Littleton,  37). 

^  Webster  %:  Bhchmorc. 


196  PKESUMPTIVE   EVIDENCE.  [rULE    30. 

absence  of  the  name  from  the  directory.  Indeed  in  the 
insignificance  of  advanced  old  age,  a  man  has  gencrall}' 
ceased  to  make  impression  on  the  busy  world  or  to  be 
enrolled  on  the  register  of  its  active  concerns.  It  seems  to 
me  difficult  to  suppose  that  direct  evidence  can  not  be  given 
of  M  death,  Avhich  if  it  has  occurred,  has  occurred  close  to 
us,  and  since  1822.  Or  did  II.  ever  leave  the  place  of  his 
former  residence?  Let  this  fact  be  shown,  and  that  his 
friends  have  not  heard  of  him  for  seven  years.  Had  he  no 
friends  —  let  that  fact  be  shown.  The  difficulty  is  that  the 
plaintiff  does  not  show  that  he  has  made  proper  search  or 
inquiry  for  H.  Had  he  done  this,  and  been  unable  to  hear 
any  thing  of  the  person,  I  should  be  of  opinion  to  receive 
the  testimony.  But  there  is  a  meagerness  about  all  this 
part  of  the  case  which  is  unsatisfactory,  to  use  no  harsher  ad- 
jective. It  shuts  up  the  access  to  presumption,  which  would 
have  otherwise  been  easy.  In  short,  I  see  nothing  in  any 
of  the  circumstances  shown,  nor  in  all  of  them  together, 
which,  in  the  absence  of  proper  inquiry,  brings  that  weight 
and  conclusiveness  which  ought  to  exist  before  you  set 
aside  a  wise  and  deep  laid  rule  of  law." 

In  case  V.  Lord  Ellenborough  said  he  relied  on  the  earlier 
case  of  Throgmorton  v.  Walton,'^  where  it  was  decided  that 
where  the  issue  is  upon  the  life  or  death  of  a  person  once 
shown  to  be  living,  the  proof  of  the  fact  lies  on  the  party 
who  asserts  the  death ;  for  that  the  presumption  is  that  the 
party  continues  alive  until  the  contrary  is  shown. 

In  a  IS^ew  York  case  it  was  said :  "  There  is  nothing  in  the 
point  raised  on  the  part  of  the  defendant  that  the  trustees 
are  to  be  presumed  dead  from  the  lapse  of  time  since  they 
were  heard  from.  The  rule  is  that  the  proof  of  the  death 
of  a  person  known  to  be  once  living  is  incumbent  upon  the 
party  who  asserts  his  death  ;  for  it  is  presumed  that  he  still 
lives  until  the  contrary  be  proved.  The  presumption  of 
death  from  any  lapse  of  time  which  the  evidence  in  this 
case  could  justify,  would  only  apply  where  the  individual 

2  liolle,  4G1. 


RULE   41.]  THE   rRESUMrTION"   OF   LIFE.  l'J7 

;illo*'-cd  to  be  dead  has  left  the  ])hicc  of  his  domicil,  and 
h:id  not  been  heard  of  for  seven  years  or  more.  No  such 
proof  was  given  or  offered  in  the  present  case."  ^ 

IIUL.E  40. — Death  may  be  proved  by  reputation,  by 
hearsay,  or  by  evidence  of  facts  inconsistent  with  the 
theory  of  the  existence  of  life.^ 

Illustrations. 

I.  The  question  in  18(59  is  whether  II.,  who  was  alive  in  1845,  is  dead. 
Acquaintances  testify  that  his  death,  in  1845,  was  announced  in  the  news- 
papers, and  that  his  friends  spoke  of  him  as  being  dead.  This  overturns 
the  presumption  that  he  is  alive. ^ 

II.  K.  was  married  in  1719,  and  had  six  children.  It  is  proved  that 
inquiry  had  been  made  where  information  of  them  would  naturally  be 
oI)tained,  and  no  account  of  Ave  of  them  could  be  had.  This  is  held 
s'jflicient,  seventy  years  having  elapsed,  ,to  justify  the  inference  that 
they  were  dead  without  lawful  issue.^ 

III.  Forty-eight  years  before,  a  conveyance  was  made  to  one  C.  by 
order  of  court.  No  claim  has  since  been  made  by  parties,  who  if  living, 
would  be  entitled.     The  presumption  is  that  they  are  dead.* 

RUL.E  41.  —  One  Avho  is  proved  to  have  been  unmarried 
Avlien  last  kuo^ai  to  be  alive  will  be  presumed  to  have 
died  childless  ;  but  it  is  otherwise  where  he  or  she 
was  married  when  last  known  to  be  alive.* 

Illustrations. 

I.  W.  emigrated  from  Australia  to  Ireland  in  ISol,  and  continues  to 
communicate  with  his  relatives  in  Ii-eland  until  1850.     Since  then  nothing 

1  Duke  of  Cumberland  v.  Graves,  9  T.arb.  G03  (1850). 

2  Anderson  v.  Tarker,  C  Cal.  107  (1S5C) ;  Jackson  v.  Etz,  5  Cow.  319  (1S26) ;  Scheel 
f.  Eidman,  77  111.  301  (1872);  Bailey  v.  Bailey,  36  Mich.  1S5  (1S77) ;  John  Hancock 
Ins.  Co.  V.  Moore,  3-t  Mich.  41  (1S7G) ;  Crouch  v.  Eveleth,  15  Mass.  305  (181S) ;  liulotf 
V.  People,  18X.  Y.1-29  (IST.S). 

3  Kiughousc  r.  Keevcr.  49  111.  470  (1SG9). 
■*  King  V.  Fowler,  11  Pick.  302  (1831). 

6  Allen  r.  Lyons,  2  Wash.  C.  C.  475  (ISU) ;  Thomas  v.  Visitors  of  Frederick  Co. 
School,  7  Gill  &.  J.  385  (1S:>.')). 

6  McComb  V.  Wright,  5  Johns.  Ch.  2G3  (1821) ;  Hammond  r.  Inloes,  4  Md.  140 
(1S53) ;  Stinchllcld  r.  Emerson,  52  Me. 405  (18C4) ;  Petcrkin  v.  Inloes,  4  Md.  175  (1853) ; 
Siirigg  V.  Moale,  23  Id.  50(»  (18CS) ;  Emerson  r.  White,  29  N.  II,  482  (1854) ;  OUlnull  r. 
Deakin,  3  C.  &  P.  4frl  (1823) ;  Banning  f.  Griffin,  15  East,  293;  Richards  r.  Uichards, 
/(/.  204  (1812) ;  Oldham  c.  ■\Vollcy,  8  B.  &  C.  22  (1S28) ;  Dunn  v.  Snowdeu,  33  L.  J.  (Ch.) 
lOi  (1SG2) ;  nays  v.  Tribble,  3  B.  Moar.  109  (1842). 


198  PRESur.iPTiYE  EVIDENCE.  [nui.E  42. 

has  been  heard  of  him,  though  inquiries  had  been  made.  When  he  left 
Ireland  he  was  unmarried.  In  18G6  the  presumption  is  that  W.  Avas 
dead  without  issue.' 

II.  It  is  proved  that  D.  E.,  with  a  wife  and  one  child,  left  his  home  in 
182-t.  He  has  not,  in  1854,  been  heard  of.  The  presumption  is  that  D. 
K.  is  dead, 2  but  there  is  no  presumption  that  he  has  no  issue  living. ^ 

III.  A  married  woman  went  from  Ireland  to  America  in  1847  with  her 
husband  and  seven  children.  She  dies  in  America  in  1SG6.  There  is  no 
presumption  in  1876  that  all  the  seven  children  have  died  without  issue.* 

In  case  II.  it  was  said :  "As  nothing  had  been  heard  from 
D.  R.  for  many  years,  the  law  would  raise  a  presumption 
of  his  death ;  and  had  he  been  a  bachelor  when  last  known 
or  heard  from,  the  presumption  would  be  that  he  died 
unmarried  and  without  issue;  but  as  he  had  a  wife  and 
child  in  full  life  when  he  left  the  country,  the  presumption 
of  his  death  would  not  ignore  their  existence." 

RULE    42.  —  But   it   is   to  be  presumed  that  a  person 
proved  to  be  dead  left  an  beir. 

Illustration. 

I.  P.  mortgaged  certain  real  estate  to  T.,  and  died  intestate,  without 
disposing  of  the  equity  of  redemption.  T.  flies  a  bill  against  the  admin- 
istrator to  foreclose  the  mortgage.  The  heirs  of  P.  should  have  b^eu 
added,  as  the  presumption  is  that  P.  left  heirs. ^ 

In  case  I.  it  was  said  :  "  It  is  insisted  that  there  is  noth- 
ing in  this  case  to  show  that  the  mortgager  had  heirs  to 
whom  the  equity  of  redemption  descended.  Under  our  luw 
the  presumption  clearly  is  that  he  left  heirs  capable  of  suc- 
ceeding to  the  estate;  and  there  is  nothing  in  the  record  to 
repel  the  presumption.  The  constitution  declares  that  '  no 
conviction  shall  work  corruption  of  blood  or  forfeiture  of 
estate.'     The  statute  provides  that  the  estate  of  a  person 


1  Re  Webb,  Irish  Rep.  5  Eq.  235  (ISTO). 

s  See  Rule  43 

3  Campbell  v.  Reed,  24  Penn.  St.  498  (1855). 

*  Mullaly  V.  Walsh,  Irish  Rep.  G  C.  L.  315(1872). 

'  Uarvey  v.  Thornton,  14  111.  217  (ls52.) 


^ULE  42.]  THE  rnESUiirxioN  of  life.  109 

dying  intestate  sh.-ill  go  to  the  next  of  kin,  however  remote 
in  degree;  and  aliens  and  non-residents  are  as  capable  of 
takin"-  the  estate  as  citizens  or  residents.  It  is  difficult, 
therefore,  to  imagine  a  case,  unless  it  be  that  of  a  bastard, 
d3'in<T  intestate  and  without  issue,  where  an  intestate  does 
not  leave  kindred  on  whom  the  law  casts  his  estate.  It 
sometimes  happens  that  the  State  acquires  an  estate  under 
the  operation  of  the  law  of  escheat,  but  that  may  be  not 
because  there  are  no  persons  in  esse  to  take  the  estate,  but 
because  they  do  not  appear  to  claim  it.  The  presumption 
is  so  violent  that  the  estate  of  an  intestate  is  transmitted  to 
others  by  descent,  that  it  can  only  be  repelled  by  proof 
that  the  fact  is  otherwise.  It  may  perhaps  be,  if  the  bill 
had  contained  an  allegation  that  the  mortgager  died  with- 
out heirs,  that  the  decree  might  be  sustained.  But  in  the 
absence  of  such  an  averment,  it  is  clearly  the  duty  of  the 
court  to  intend  that  there  are  persons  in  existence  who 
inherited  the  equity  of  redemption ;  and  they  must  be 
brou"-ht  into  the  case  before  a  decree  of  foreclosure  can 
properly  be  entered.  If  the  heirs  are  not  known  they  can, 
under  the  statute,  be  proceeded  against  as  unknown  per- 
sons." 


CHAPTER    X. 

THE  PRESUMPTION  OF  DEATH. 

RULE  43.  — An  absentee  shown  not  to  liave  been  heard 
of  for  seven  years  by  persons,  who  if  he  had  been 
alive  would  naturally  have  heard  of  him,  is  presumed 
to  have  been  alive  until  the  expiry  of  such  seven 
years,  and  to  have  died  at  the  end    of  that  term.^ 

Illustrations. 

I.  In  the  middle  of  November,  1840,  Captain  M.,  in  command  of  a 
ship  of  war  with  ten  seamen,  sailed  on  a  launch  from  San  Francisco  to 
Fort  Sutter,  on  the  Sacramento  River.     No  intelligence  was  ever  after 


1  Stevens  v.  McNamara,  36  Me.  176  (1853) ;  Doe  v.  Flanagan,  1  Ga.  538  (1816) ; 
Spears  v.  Burton,  31  Miss.  554  (1856) ;  Craig  v.  Craig,  1  Bailey  (Eq.)  (S.  C.)  102  (1830) ; 
Clarke  v.  Cummings,  5  Barb.  353  (1819) ;  Tilly  v.  Tilly,  2  Bland  Ch.  444 ;  (1810) ;  Foulks 
V.  Ehea,  7  Bush,  568  (1870) ;  Ashbury  v.  Sanders,  8  Cal.  62  (1857) ;  Godfrey  v.  Schmidt, 

1  Cheves  (S.  C),  57  (1840) ;  Mottett  v.  Varden,  5  Cranch  C.  C.  658  (1840) ;  Anonymous, 

2  Ilayw.  (S.  C.)  134  (1801) ;  Bowden  v.  Evans,  2  Hayw.  (S.  C.)  222  (1802) ;  Crawford  v. 
Elliott,  1  Iloust.  (Del.)  465  (1855) ;  Hancock  v.  American  Life  Ins.  Co.,  62  Mo.  26 
(1876) ;  Smith  v.  Knowlton,  11  N.  II.  1%  (1840) ;  Kingr.  Paddock,  18  Johns.  141  (1820) ; 
Bradley  v.  Bradley,  4  Whart.  173  (1838) ;  Loriug  v.  Steinman,  1  Mete.  210  (1840) ; 
Spears  v.  Burton,  31  Miss.  547  (1856) ;  Forsaith  v.  Clark,  21  K  II.  424  (1S50) ;  Rosenthal 
V.  Mayhugh,  33  Ohio  St.  155  (1877) ;  Rice  v.  Lumley,  10  Id.  596  (1857) ;  Youngs  v.  lleil- 
ner,  .36  Id.  232  (1880) ;  Mayhugh  v.  Rosenthal,  1  Ciun.  Sup.  Ct.  492  (1871) ;  Holmes  v. 
Johnson,  43  Pa.  St.  159  (1SG2) ;  Innis  v.  Campbell,  1  Uawle,  375  (1829) ;  Puckctt  v. 
state,  1  Sneed,  356  (1853) ;  Primm  v.  Stewart,  7  Texas,  183  (1851) ;  Re  Hall,  1  Wall.  jr. 
65  (1813) ;  Woods  V.  Woods,  2  Bay,  476  (1802) ;  McXair  v.  Ragland,  1  Dev.  (Eij.)  633 
(1830) ;  Davis  v.  Briggs,  7  Otto,  628  (1878) ;  Rust  v.  Baker,  8  Sir.i.  443  (1837) ;  Onomaney 
V.  Stlllwell,  23  Bcav.  328  (1856) ;  Ewing  v.  Savery,  3  Bibb,  235  (1813) ;  Adams  v.  Jones,  39 
Ga.  .503  (1869);  Proctor  u.  McCall,  2  Bailey  (S.-C.),134;  23  Am.  Dec.  134  (1831);  Lajoye 
V.  Primm,  3  Mo.  529  (1834) ;  Iloyt  v.  Newbold,  45  K.  J.  (L.)  219  (1383).  In  Naisor  v. 
Brockway,  Rich.  Eq.  Cas.  449  (1830),  there  is  an  extraordinary  ruling  by  Chancellor 
Harper,  of  South  Carolina,  to  the  effect  that  where  an  absentee  is  unheard  of  for 
ecven  years,  the  presumption  is  that  he  died  at  Ihe  commencement  ot  that  period. 
The  question  was  whether  one  Philip  Naison  Brockway  could  be  presumed  to  have 
died  before  reaching  the  age  of  twenty-one  years.  He  was  born  in  1800,  and  left 
home  in  1814.  Late  in  1814  he  was  last  heard  of.  The  chancellor  held  that  he  must 
bepresumed  to  have  died  a  minor,  saying:  "When  the  period  of  seven  years  has 
elapsed  the  law  presumes  that  it  was  occasioned  by  death  and  not  by  any  minor 
casualty.  Not  death  at  the  end  of  the  period;  but  that  the  ignorance  of  his  exist- 
ence during  the  whole  period  was  the  consequence  of  his  death.  This  seems  nat- 
urally to  have  relation  to  the  earliest  period  when  his  existence  became  uncertain." 

(  200  ) 


RULE   43.]  THE   ITJCSUMPTIOX   OF   DEATH. 


201 


received  of  the  launch  or  any  of  its  crew.  On  December  1,  184<;,  a  grant 
of  land  was  made  to  Captain  M.  The  presumption  is  that  Captain  M. 
was  alive  on  December  1,  1871.^ 

II.  E.  died  on  September  9,  1851,  leaving  a  logacj-  to  his  .son  W.  In 
May,  1846,  W.  wrote  to  his  brother  that  he  was  to  sail  from  Baltimore  to 
Africa  in  a  few  days  in  charge  of  a  brig.  Nothing  was  subsequently  heard 
of  hlra.    The  presumption  is  that  W.  was  alive  on  September  9,  1851.* 

III.  In  March,  1801,  M.  disappeared  from  his  boarding-house  in  New 
York  with  the  declared  intention  of  going  South,  and  was  not  afterward 
seen  or  heard  of.  In  1871  his  administrator  brought  an  action  on  a 
policy  of  insurance  on  his  life.  The  company  defended  on  the  ground  of 
a  failure  to  pay  a  premium  due  in  June,  18G1.  M.  is  presumed  to  have 
been  alive  at  that  time,  aud  the  administrator  can  not  recover.^ 

IV.  In  18GG,  A.  claiming  as  the  wife  of  N.,  brought  an  action  for 
dower  in  land  which  the  defendant  claimed  by  virtue  of  a  deed  made  ia 
1856.  It  is  proved  that  N.  has  not  been  heard  of  since  March  21,  1852. 
The  presumption  is  that  he  was  dead  on  March  22,  1859.* 

V.  C.  died  December  4,  1352,  leaving  by  her  will  a  legacy  to  her 
nephew,  E.  In  1837,  E.  resided  in  Connecticut,  but  removed  to  New 
York,  where  he  was  heard  from  until  1849,  when  he  ceased  to  correspond 
with  his  friends  in  Connecticut,  aud  was  not  subsequently  heard  of.     If 


The  chancellor  afterward  found  that  he  had  drawn  the  line  too  closely,  for  he  add3 
ill  a  note  to  the  rciiort  of  the  case :  "  Memorandum.    After  this  decree  and  after  the 
distribution,  Philip  Xaisor  Brockway,  as  I  am  informed,  made  his  appearance  ia 
Charleston  in  good  health."    But  see  Chapman  v.  Cooper,  5  Rich.  (L.)  452  (1S5-2).    The 
rule  adopted  in  England  is  diflfercnt.    It  seems  to  be  established  by  the  decision  of 
the  highest  courts  in  that  country ,that  where  a  person  goes  abroad  and  is  not  heard 
of  for  seven  years,  the  law  presumes  that  he  is  dead,  but  there  is  no  presumption 
of  law  that  he  died  at  any  precise  time  within  these  years.    In  other  words,  that 
on  the  one  hand  the  time  at  which  a  person  died  within  the  seven  years  is  not 
amatter  of  presumption  but  of  proof,  and  on  the  other,  there  is  no  presumption  of 
the  continuance  of  life  after  the  disappearance  of  the  party ;  but  the  onus  of  prov- 
ing the  death  or  existence  of  the  parly  at  any  particular  time  within  that  period 
lies  on  the  person  who  claims  a  right  resting  on  the  establishment  of  either  of  these 
facts.    Doer.  Nepean,  5  B.  &Ad.  36;  Knight  f.  Nepean,  2  M.  &  W.  89.5;  RcPhene'3 
Trusts,  L.  R.  5  Ch.  App.  130;  Re  How,  1  Sw  &  T.  53  (1S58) ;  Thomas  v.  Thomas,  2  Dr. 
&.Sm.  293  (1SC4)  ;  Re  Bcnham's  Trusts,  37  L.  J.  (Ch.)  2G5  (1S6S) ;  Lambcr.  Orton,  29  Id. 
2S6  (1860) ;  lie  Peck,  20  L.  J.  (P.  &  M.)  95  (ISOO).    But  the  English  cases  are  not  in  ac- 
cord on  this  point,  as  will  be  seen  by  consulting  R.  v.  Wellshire.G  Q.  B.  Div.  3CG;  Re 
Corbishley's  Trusts,  14  Ch.  Div.  84G;Gill  v.  Manley,  IG  Ir.  L.  T.  57;  Wilson  r.  Uodges, 
2  East,  313;  Doe  v.  Jesson,  C  Id.  SO;  Rowe  v.  llosland,  1  W.  Bl.  4*4.    A  few  crises  in 
the  American  courts  follow  the  English  rule.    State  v.  Moore,  11  Ired.  (L.)  IGO  (1650) ; 
Spencer  v.  Roper,  13  Id.  333  (1S.)2).    Proof  of  a  rumor  that  the  party  was  alive 
within  the  seven  years  that  turned  out  to  be  untrue  rather  strengtliens  instead  of 
■weakens  the  presumption  of  death.    Moore  v.  Parker,  12  Ired.  (L.)  123  (1S51). 
1  Montgomery  v.  Bevans.  1  Sawy.  GGO  (1871). 

-  Eagle's  Case,  3  Abb.  Pr.  218  (1S5G) ;  Bradley  r.  Bradley,  4  Whart.  173  (1S3S)  ; 
Whiteside's  Appeal,  23  Pa.  St.  114  (1S54). 

3  Hancock  r.  American  Life  Insurance  Co.,  62  Mo.  26  (1S7G). 
*  Whiting  r.  NichoU,  43  111.  235  (1SG7). 


202  PRESUMPTIVE    EVIDEXCE.  [eULE    43. 

E.  died  before  C.  the  legacy  lapsed.  If  he  siirvivcd  in  18G2  (when  the 
suit  was  brought),  it  belonged  to  him.  If  he  died  after  C. it  belonged  to 
Lis  next  of  kin.  The  presumption  is  that  E.  did  not  die  till  185G,  and  the 
legacj'  goes  to  his  next  of  kin.i 

TI.  J.  sailed  from  New  York  to  Europe  in  1791,  and  nothing  was  sub- 
sequently heard  of  him.  The  presumption  is  that  A.  continued  alive  till 
the  expiration  of  seven  years  from  the  day  he  sailed  from  New  York.^ 

VII.  A  woman  was  sued  on  a  promissory  note  dated  in  1808.  Slie 
pleaded  coverture  at  the  time.  It  was  proved  that  she  was  married  in 
England  in  1779  to  a  person  who  went  to  Jamaica  twelve  years  before  the 
trial.  The  presumption  is  that  the  husband  was  dead  after  seven  years' 
absence  .2 

Tin.  S.  disappeared  at  an  unknown  date  in  the  year  1809.  There  is 
no  presumptiou  that  S.  was  dead  on  April  29,  ISlC* 

In  fixing  this  arbitrary  period  of  seven  years  —  for  it 
might  just  as  reasonably  have  been  five  or  ten  —  the  judges 
followed  the  Legislature,  which  in  the  times  of  James  the 
First  and  of  Charles  the  Second,  in  order  to  render  it  possi- 
ble for  the  wife  of  an  absent  party  to  marry  again  without 
fear  of  committing  a  crime,  and  to  lessen  the  inconvenience 
of  ascertaining  and  proving  the  death  of  cestuis  que  vie  in 
leases,  provided  that  seven  years'  absence  without  being 
heard  of  should  be  sufficient  proof  of  death  in  both  cases. 

Ill  one  case  an  English  vice-chancellor  e.xpressed  the 
opinion  that  the  presumptions  relating  to  death  were  becom- 
ing more  and  more  untenable.  "Owing,"  said  he,  "to 
the  facility  which  traveling  by  steam  afforded,  a  person 
may  now  be  transported  in  a  very  short  space  of  time  from 
this  country  to  the  backwoods  of  America,  or  some  other 
remote  region,  where  he  may  never  be  heard  of  again." 

A  period  longer  than  seven  years  would,  according  to 
this  reasoning,  best  suit  the  necessities  of  modern  habits 
and  invention.  But  nine  men  out  of  ten  would  be  likely 
to  come  from  the  same  premise  to  the  very  opposite  con- 

1  Clarke  v.  CanfieUl,  15  N.  J.  (Eq.)  119  (18G2). 

-  Burr  V.  Sim,  -1  Whart.  150;  ?,?,  Am.  Dec.  50  (1838) 

8  Hopewell  V.  Do  I'inney,  2  Camp.  113  (1809). 

*  Derin  r.  Bittner,  77  Mo.  101  (18S2). 

6  Shadwell,  V.  C,  m  Watson  v.  Eugland,  U  Sim.  28. 


RULE   43.]  THE   rRESUMrriON   OF   DEATH. 


203 


elusion.  To  go  abroiid  n  hundred  and  fifty  years  ago,  was 
attended  in  the  first  place  with  greater  danger,  and  in  tho 
second  place,  his  means  of  communication  were  infrequent 
and  uncertain.  Every  one  who  at  that  time  went  to  regions 
at  all  remote  was  as  much  cut  off  from  the  facilities  of  a 
modern  post-office  as  was  Livingstone  during  the  time  that 
Stanley  was  in  search  of  him,  or  as  our  Arctic  explorers  of 
the  present  day.  But  to-day  it  is  only  the  explorer  or  the 
hermit  who  is  able  to  put  himself  beyond  the  means  of 
communication  with  any  part  of  the  world. 

"The  law  as  declared  in  England,"  it  was  siad  by  ?»Ir. 
Justice  Field,  in  case  I.,  *'  is  different  from  the  law  which 
obtains  in  this  country,  so  far  as  it  relates  to  the  presump- 
tion of  the  continuance  of  life.  Here,  as  in  England,  the 
law  presumes  that  a  person  who  has  not  been  beard  of  for 
seven  years  is  dead,  but  here  the  law,  differing  in  this 
respect  from  the  law  of  England,  presumes  that  a  party 
once  shown  to  be  alive  continues  alive  until  his  death  is 
proved,  or  the  rule  of  law  applies  by  which  death  is  pre- 
sumed to  have  occurred,  that  is,  at  the  end  of  seven  years. 
And  the  presumption  of  life  is  received,  in  the  absence  of  any 
countervailing  testimony,  as  conclusive  of  the  fact,  establish- 
ing it  for  the  purpose  of  determining  the  rights  of  parties 
as  fully  as  the  most  positive  proof.  The  only  exception  to 
the  operation  of  this  presumption  is  when  it  conflicts  with 
the  presumption  of  innocence,  in  which  case  the  latter  pre- 
vails. This  rule  is  much  more  convenient  in  its  application, 
and  works  greater  justice  than  the  doctrine  which  obtains  in 
England,  according  to  the  decision  in  Pliene  Trusts,  th^it 
the  existence  of  life  at  any  particular  time  within  the  seven 
years,  when  the  fact  becomes  material,  must  be  affirmatively 
proved.  In  numerous  cases  such  proof  can  never  be  made, 
and  property  must  often  remain  undistributed,  or  be  dis- 
tributed among  the  contestants,  not  according  to  any  set- 
tled principle,  but  according  as  one  or  the  other  happens  to 
be  the  moving  party  in  court.  Take  this  case  by  way  of 
illustration :  A  man  goes  to  sea  on  the  first  of  January, 


204  PRESUMrXIYE  EVIDENCE.        [rULE  43. 

18G0,  and  is  never  heard  of  again:  his  father  makes  his 
will  and  dies  on  the  first  of  July  of  the  same  year,  leaving 
him  a  portion  of  his  property,  and  the  residue  to  a  distant 
relative.  If  persons  claiming  under  the  missing  man  apply 
for  the  legacy  to  him,  they  must  fail,  for  they  can  not 
prove  that  he  survived  the  testator.  On  the  other  hand,  if 
the  residuary  legatee  applies  for  the  property  on  the  ground 
that  the  legacy  to  the  missing  man  has  lapsed,  he  must  fail, 
for  he  can  not  prove  that  the  missing  man  died  before  the 
testator,  and  the  proof  of  his  death  in  such  case  would  be 
essential  to  the  establishment  of  the  applicant's  right.  Nor 
is  this  rule  as  to  the  presumption  of  the  continuance  of  life 
up  to  the  end  of  the  seven  years  justly  subject  to  the  criti- 
cism of  counsel,  that  it  renders  absurd  the  whole  basis  on 
which  the  presumption  of  death  rests.  There  must  be  some 
period  when  the  presumption  of  the  continuance  of  life 
ceases  and  the  presumption  of  death  supervenes  ;  and  as  in 
all  cases  where  the  existence  of  a  presumption  arising  from 
the  lapse  of  time  is  limited  by  a  fixed  period,  it  is  difficult 
to  assign  any  valid  reason  why  one  presumption  should 
cease  at  the  particular  time  designated,  rather  than  at  some 
other  period  and  a  different  presumption  arise,  except  that 
it  is  important  that  sometime,  when  the  change  takes  place, 
should  be  permanently  established.  It  would  be  difficult  to 
assign  any  other  reason  than  this  for  the  presumption  which 
obtains  in  some  States  that  a  debt  is  paid  upon  which  no 
action  has  been  brought,  after  the  lapse  of  six  years ;  and 
that  it  is  unpaid  up  to  the  last  hour  of  the  sixth  year.  The 
presumption  of  payment  arising  from  the  lapse  of  time 
without  action,  it  might  be  said  with  equal  propriety,  as  in 
the  present  case  with  respect  to  the  presumption  of  life  to 
the  end  of  the  seventh  year,  that  if  the  presumption  of  non- 
payment extends  up  to  the  end  of  the  sixth  year,  it  renders 
absurd  the  whole  basis  upon  which  the  presumption  of  pay- 
ment rests.  So  it  would  be  difficult  to  give  any  sufficient 
reason  for  admitting  in  evidence  a  deed  thirty  years  old 
without  other  proof  of  its  execution  than  what  is  apparent 


KULK    4.0.]  THE    rRESUiimON    OF    DEATH.  205 

oil  its  face,  and  at  the  same  time  refusing  admission  to  a 
deed  except  upon  full  proof  of  its  execution,  whicli  has 
existed  thirty  years  less  one  day — except  that  it  is  impor- 
tant that  the  period  should  be  fixed  at  which  the  presump- 
tion arises  which  supersedes  the  necessity  of  direct  i)roof." 
In  case  II.  it  was  said:  "■  A\'hat  is  a  court  or  jury  to  do 
when  there  arc  no  accompanying  circumstances,  when  there 
is  no  ground,  in  fact,  for  inferring  death  at  any  particular 
time.  The  question  is  not  whether  those  presumptions  are 
rigid  and  strict,  but  whether  there  arc  any  such  presump- 
tions, and  if  so  what  is  their  effect  "when  there  is  an  entire 
dearth  of  evidence  tending  to  guide  the  conclusion  as  to  life 
or  death.  Confessedly  before  the  analogy  drawn  from  the 
statute  of  bigamy  and  life  tenancies  prevailed,  it  was  a  mlc 
of  evidence  to  presume  life  until  the  contrary  was  shown. 
That  rule  still  continues  except  so  far  as  it  has  been  modified 
by  the  presumption  drawn  from  the  statutes  of  death  after 
seven  3'ears'  absence  without  intelligence.  The  practical 
effect  of  these  two  rules,  if  both  arc  to  be  taken  as  subsist- 
inff,  is  that  whenever  the  law  is  invoked  as  to  the  riijhts 
depending  upon  the  life  or  death  of  the  absent  party,  he  is 
to  be  deemed  as  living  until  the  seven  years  have  expired, 
and  after  that  is  to  be  deemed  as  dead.  Not  that  the  law 
finds  as  a  matter  of  fact  that  he  died  on  the  last  day  of  the 
seven  years,  but  that  rights  depending  on  his  life  or  death 
ore  to  be  administered  as  if  he  had  died  on  that  daij.  It  is 
impossible  to  say  when  he  died,  or  even  to  assert  as  a  mat- 
ter of  fact  that  he  is  dead,  but  in  the  absence  of  all  evi- 
dence the  law  will  account  him  as  dead  at  a  certain  time 
and  not  before.  This  is  an  artificial  rule,  and  of  course 
can  not  be  expected  to  square  with  the  actual  fact.  It  is  the 
logical  result  of  the  presumptions,  founded  upon  reasons  of 
convenience,  and  the  necessity  of  fixing  upon  some  limit 
within  which  the  relations  of  the  living  to  the  absent  are  to 
be  determined,  more  than  upon  any  strong  probabilities. 
This  is  the  meaning  of  our  statute  in  respect  to  life  estates 
which  declared  that  if  the  life  tenant  shall  absent  himself 


206  •  PEESU3IPTIVE   EVIDENCE.  [rULE   43. 

for  seven  years,  and  his  death  shall  come  in  question,  such 
person  shall  be  accounted  naturally  dead  in  any  action  con- 
cerning the  lands  in  which  he  had  the  estate  for  life,  unless 
sufEcicnt  proof  be  made  that  he  is  still  living.  He  shall  be 
accounted  dead.  The  law  so  treats  him  and  accounts  him, 
just  as  the  common  law  treated  and  accounted  him  living 
until  his  death  was  proved.  In  neither  case  can  it  be  said 
that  his  life  or  death  has  been  actually  proved,  but  in  both 
cases  it  may  be  said  that  he  shall  be  accounted  living  until 
by  reason  of  his  absence  the  law  accounts  him  dead  ;  and 
for  the  purposes  of  justice,  the  rights  and  relations  of  par- 
ties affected  by  his  life  or  decease  shall  in  the  absence  of 
information  be  determined  by  this  technical  presumption. 
This  certainly  seems  to  me  the  most  consistent  and  symmet- 
rical rule;  and  when  it  is  regarded  as  a  dry  legal  doctrine 
adapted  for  purposes  of  convenience,  and  from  the  necessity 
of  having  some  limited  period  for  the  determination  of  the 
rights  of  absent  persons,  and  not  as  a  determination  upon 
the  death  or  the  real  time  of  the  death,  there  would  appear 
to  be  no  grave  objection  against  it.  *  *  *  The  result 
is  that  in  the  case  of  absent  persons,  it  is  within  the  province 
of  the  court  or  jury  to  infer  from  circumstances,  if  any 
appear  in  proof,  the  probable  time  of  death;  but  if  no 
sufficient  facts  are  shown  from  which  to  draw  a  reasonable 
inference  that  death  occurred  before  the  lapse  of  seven 
years,  the  person  will  be  accounted  in  all  legal  proceedings 
as  having  lived  during  that  period." 

In  case  IV.  it  was  said  :  "  It  has  come  to  be  regarded  as 
a  settled  principle  that  the  absence  of  a  party  for  seven 
years,  without  any  intelligence  being  received  of  him  within 
that  time,  raises  the  presumption  that  he  is  dead,  and  the 
jury  on  proof  of  such  absence  have  a  right  to  presume  his 
death.  A  less  period  will  not  suffice  to  raise  the  presump- 
tion, but  a  party  whose  interest  it  is  to  show  that  he  was 
living  within  that  time  is  at  libert}'  to  show  it  by  such  facts 
and  circumstances  as  will  inspire  that  belief  in  the  minds 
of  the  jury.     As  in  this  case  the  demandant,  to  make  out 


RULE  43.]     THE  PRESUMPTION  OF  DEATH.  207 

her  right  to  bring  her  action,  had  only  to  show  hor  husband 
hud  not  been  heard  of  from  the  21.st  of  March,  1852,  to 
the  21.st  of  March,  1859,  the  presumption  of  hiw  then 
comes  in  that  he  was  dead  on  the  22d  of  March,  1859, 
being  seven  years  from  the  time  he  was  hist  heard  of. 
This  is  all  the  proof  she  was  required  to  submit,  the  mar- 
riage being  established  and  no  question  being  made  as  to 
the  title  of  her  husband.  "When  she  by  competent  proof 
raised  this  presumption  of  death,  to  what  period  of  time 
did  it  extend?  The  answer  is  plain,  —  her  right  to  sue  did 
not  exist  until  the  death  of  her  husband  was  established, 
and  as  that  was  not  established  until  the  21st  day  of  March, 
1859,  the  presumption  took  effect  on  that  day;  then,  in 
leiral  contemplation,  her  husband  was  not  among  the  liv- 
ing." 

Case  V.  was  decided  in  New  Jersey,  where  by  statute  a 
person  is  presumed  to  be  dead  after  seven  years'  absence 
without  beinor  heard  of.  The  court  said:  "It  is  ur;2;ed 
that  although  at  the  end  of  seven  years  the  law  presumes 
that  the  absent  party  is  dead,  there  is  no  presumption  ivhen 
he  died  ;  that  the  law  was  designed  to  furnish  evidence  of 
the  fact  of  the  death,  but  not  of  the  time  of  the  death. 
This  view  of  the  operation  of  the  statute  was  adopted  by  the 
Court  of  King's  Bench  and  Exchequer  in  Doe  v.  Nepean^ 
and  appears  to  be  the  settled  doctrine  of  the  English  courts. 
The  same  view  appears  also  to  have  been  adopted  in  some 
of  the  American  decisions.  *  *  *  j^  the  present  case 
this  view  of  the  statute  must  give  rise  to  much  more  serious 
embarrassment,  and  will  defeat  a  recovery  of  the  fund  by 
either  party  from  the  impossibility  of  ascertaining  when 
the  legatee  died.  The  child  of  the  special  legatee,  to 
entitle  himself  to  recover,  must  show  that  the  legatee 
survived  the  testatrix,  otherwise  the  legacy  lapsed.  The 
residuary  legatee,  to  establish  her  claim,  must  show  that 
the  special  legatee  died  in  the  lifetime  of  the  testatrix,  for 
in  that  event  alone  is  she  entitled  to  the  fund.  And  no 
length  of  time  will  remove  the  difficulty,  so  that  the  title  to 


20S  PEESUMPTIYE  EVIDEXCE.        [rULE  43. 

the  fund  must  forever  remain  unsettled.  Similar  embar- 
rassments, it  is  obvious,  will  be  encountered  in  numerous 
cases  in  "which  the  aid  of  the  statute  may  be  invoked.  A 
construction  which  leads  to  such  results  ought  not  to 
be  adopted,  except  for  the  most  cogent  reasons.  It  will 
greatly  impair  the  beneficent  design  of  the  statute,  which 
was,  I  apprehend,  to  furnish  a  legal  presumption  of  the 
time  of  the  death  as  well  as  of  iliQ  fact  of  the  death.  And 
that  design  it  accomplished  by  the  fairest  rules  of  in- 
terpretation. The  legatee  is  proved  to  have  been  living 
about  three  years  before  the  death  of  the  testatrix.  The 
legal  presumption,  indejiendent  of  the  statute,  is  that  life 
continues  until  the  contrary  is  shown  or  until  a  different 
presumption  is  raised.  In  the  absence  of  the  statute  the 
presumption  would  be  that  the  legatee  is  still  alive.  The 
design  of  the  statute  was  by  an  arbitrary  rule  to  fix  a 
definite  limit  to  that  presumption  of  the  continuance  of 
life  by  a  contrary  presumption  that  life  has  ceased.  But 
the  presumption  of  life  ceases  only  when  it  is  overcome 
by  the  countervailing  presumption  of  death.  And  the  real 
question  is  not  whether  the  statute  furnishes  any  evidence 
of  the  precise  time  of  the  death,  but  whether  it  furnishes 
any  evidence  of  the  occurrence  of  death  before  the  end  of 
the  seven  years.  If  it  does  not,  the  presumption  of  life 
continues  by  well  settled  rules  of  evidence  independent 
of  the  statute.  Tlie  py^esumption  of  death  lohich  arises 
upon  tlie  expiration  of  the  seven  years  can  not  act  retro- 
spectively. *  *  *  There  may  be  circumstances  which 
will  create  a  presumption  in  fact  of  the  death  of  an  absent 
party  within  seven  years.  But  this  in  no  wise  affects  the 
legal  presumption  created  by  the  statute,  and  in  the  absence 
of  such  circumstances  the  presumption  of  life  continues 
until  arrested  by  the  statute.  It  is  no  answer  to  say  that 
the  probabilities  are  that  death  did  not  occur  at  the  expira- 
tion of  the  seven  years,  but  at  some  other  time  within 
that  period.  The  time  of  the  death,  as  well  as  the  fact 
of  death,  are  presumptions  not  of  fact  but  of  law.     The 


RULE   43.]  TUE  rr.ESUMrTIOX   OF   DEATH.  209 

law  refTjircIs  neither  as  certain.  It  simply  declares  that  the 
party  shall  be  presumed  to  be  dead  at  the  expiration  of  the 
seven  years,  whenever  bis  death  shall  come  in  question. 
The  lanf^uaire  of  the  statute,  as  well  as  that  of  G  Anne  and 
19  Charles  I.,  for  which  our  statute  was  designed  as  a  sub- 
stitute, clearly  indicates  that  an  arbitrary  rule  was  designed 
to  be  established,  by  which  the  rights  of  parties  litigant 
might  be  determined  in  the  absence  of  more  unequivocal 
proof,  however  inconsistent  that  presumption  might  be 
with  the  actual  truth  of  the  case.  This  view  of  the  effect 
of  the  presumption  created  by  the  statute  is  sustained  by 
the  great  weight  of  American  authority.  It  appearing  that 
the  special  legatee  was  in  life  about  three  years  before  the 
death  of  the  testatrix,  the  presumption  is  that  he  continued 
in  life  until  after  the  death  of  the  testatrix,  and  that  con- 
sequently the  legacy  did  not  lapse.  More  than  seven  years 
having  elapsed  since  the  legatee  was  last  heard  from,  the 
legal  presumption  created  by  the  statute  attaches.  The 
legatee  is  now  presumed  to  be  dead,  and  the  next  of  kin 
is  entitled  to  the  fund." 

In  case  VI.,  it  was  said:  *'  Not  only  convenience,  but 
necessity,  calls  for  a  definite  rule  to  produce  certainty  of 
result  in  the  determination  of  facts  which  must  be  passed 
upon  without  proof;  and  such  can  be  obtained  only  from 
the  doctrine  of  presumptions  which  however  arbitrary,  is 
indispensable,  and  when  founded  on  the  ordinary  course  of 
events,  productive  of  results  which  usually  accord  with  the 
truth.  There  is  nothing  so  frequently  unattended  Avith  the 
ordinary  means  of  proof,  and  yet  so  essential  to  the  deter- 
mination of  a  right,  as  the  time  of  an  individual's  death. 
The  common  law  soon  had  recourse  to  presumption  for  the 
continuance  of  life,  by  casting  the  proof  of  its  cessation 
on  him  who  alleged  it ;  yet  it  must  have  been  obvious  that 
a  counter  presumption  of  superior  power,  founded  in  expe- 
rience of  the  ordinary  duration  of  human  existence,  and 
leading  to  a  certain  conclusion  of  death,  might  be  raised 
from  lapse  of  time  alone.     The  latter,  however,  would  be 


210  rr.ESUMrTivE  evidence.  [rule  43. 

but  a  natural  presumption,  producing  not  constructive 
belief,  but  actual  conviction,  and  failing  to  apply  its  rule 
to  cases  without  regard  to  circumstances,  it  would  be  inad- 
equate to  the  necessities  of  legal  adjudication.  Sensible  of 
this,  the  English  judges  provided  for  these  necessities  by 
limiting  in  analogy  to  their  statutes  concerning  leases  and 
bigamy,  the  presumption  of  life  to  the  period  of  seven 
years.  These  statutes  are  not  in  force  here,  nor  have  we 
any  of  our  own  which  correspond  to  them  ;  consequently 
the  period  assumed  with  us  must  be  an  arbitrary  one,  just 
as  is  the  period  for  the  presumption  of  payment,  which 
corresponds  with  the  Englit;h  Statute  of  Limitations  to  bar 
an  entry  instead  of  our  own.  The  period  assumed  by  the 
English  judges,  however,  is  a  reasonable  one,  and  we  have 
been  cautiously,  but  constantly,  approaching  it.  That  it 
had  not  already  been  arrived  at,  as  in  some  of  our  sister 
States,  by  direct  decision,  is  to  be  ascribed  to  the  absence 
of  a  case  which  required  it.  Such  a  case  now  occurs  ;  and 
the  principle  is  to  be  considered  as  definitively  settled.  But 
the  presumption  of  death,  as  a  limitation  of  the  presump- 
tion of  life,  must  be  taken  to  run  exclusively  from  the 
termination  of  the  prescribed  period  ;  so  that  the  person 
must  be  taken  to  have  then  been  dead,  and  not  before. 
Indeed  that  is  a  necessary  conclusion  from  viewing  it,  not 
merely  as  a  limitation,  but  as  a  countervailing  presumption, 
which  as  it  does  not  supplant  its  predecessor  before  the  end 
of  the  period,  assumes  no  more  than  that  the  individual 
and  the  period  expired  together  ;  and  the  predecessor  being 
still  in  force  to  rule  the  case,  in  respect  to  the  time  covered 
by  it,  is  sufficient  to  sustain  an  inference  of  intermediate 
existence  throughout.  Thus  the  presumption  of  life  con- 
linues  till  it  is  displaced  by  a  more  potent  one,  which  hov/- 
ever  has  no  retroactive  force;  and  indeed  it  would  be  of 
little  use  if  it  had,  for  to  leave  the  time  of  the  death  still 
uncertain,  would  leave  a  perplexity  which  it  was  its  purpose 
to  remove.  It  is  undoubtedly  true  that  additional  circum- 
stances of  probability  may  justify  a  presumption  that  the 


RULE    43.]  THE   PRESUMPTION   OF   DEATFI.  211 

death  was  still  sooner;  but  these,  where  they  operate, 
introduce  a  distinct  and  dissimihir  principle.  What  seems 
to  me  to  be  a  palpable  error  of  Chief  Justice  Denman  in 
KnUjht  V.  Nfpean^  on  the  authority  of  which  the  present 
case  was  ruled  below,  is  the  view  he  took  of  tiie  presump- 
tion of  death,  from  the  efflux  of  a  definite  period,  as  being, 
in  some  measure,  a  natural  one,  operatinjz;  within  the  period 
and  in  proportion  to  its  tendency  to  produce  actual  belief, 
and  not  merely  as  an  artificial  one  tending  to  the  legal  con- 
clusion of  a  fact  without  the  period,  which  independently 
of  circumstances  a  jury  is  bound  to  draw.  A  similar  want 
of  attention  to  its  class  produces  those  loose  and  indeter- 
minate dicta y  in  regard  to  the  presumption  of  payment, 
from  the  lapse  of  time,  which  were  noticed  in  Henderson 
V.  Leiois}  It  certainly  has  not  been  expressly  decided  that 
the  person  must  be  taken  to  have  lived  throughout  the 
period;  but  that  conclusion  inevitably  follows  from  the 
legal  presumption  of  life,  which  though  prospectively 
rebutted  at  a  particular  period,  is  sufBcient  to  sustain  the 
allegation  of  existence  during  the  time  it  lasted.  On  the 
other  hand  there  it  no  precedent  to  the  contrary;  for  the 
presumption  in  Watson  v.  King^  which  grew  out  of  the 
probable  fate  of  a  missing  ship,  rested  on  circumstances 
very  different  from  those  which  are  usually  connected  with 
the  probable  fate  of  an  absent  individual.  In  the  case  at 
bar  therefore  we  must  say  there  was  an  error  in  leaving  the 
jury  to  presume  the  death  to  have  been  at  an  intermediate 
period,  unless  we  discover  in  the  case  at  least  a  spark  of 
evidence  that  the  individual  was,  at  some  particular  date, 
in  contact  with  a  specific  peril  as  a  circumstance  to  quicken 
the  operation  of  time." 

By  the  civil  law,  an  absentee  whose  death  is  not  proved 
is  presumed  to  live  until  he  should  have  attained  the  age  of 
one  hundred  years,  which  term  is  regarded  as  the  most 
remote  period   of  the  ordinary  life  of  man.     *'  Death  is 

1  9  S.  &  R.  3S1;  11  Am.  Dec.  73:. 


212  PKESUMPTIVE  EVIDENCE.        [rULE  44. 

never  presumed  from  absence  ;  therefore  be  wbo  claims  an 
estate  on  account  of  a  man's  death  is  alwa3's  held  to  prove  it. 
An  absentee  is  always  reputed  living  until  bis  death  be  proved 
or  until  one  hundred  years  have  elapsed  since  his  birth  ; 
although  a  man  be  absent,  and  there  be  no  account  of  him, 
his  death  is  not  to  be  presumed  ;  they  do  not  proceed  to  a 
division  of  his  estate,  for  he  is  presumed  to  live  one  hundred 
years."  1 


RULE  44.  — An  "  absentee  "  witliin  Rule  43  is  one  who 
lias  left  liis  residence,  home,  or  domicil,  either  tem- 
porarily (intending  to  return)  or  permanently  (intend- 
ing to  establish  a  fixed  residence,  home,  or  domicil 
elsewhere.)  (A).  Where  the  removal  is  temporary, 
absence  alone,  without  being  heard  of,  is  sufficient  to 
i*aise  the  presumption  of  death  within  Rule  43.  But 
where  it  is  permanent,  without  intention  to  return, 
the  presumption  does  not  arise  until  inquiry  has  been 
made  at  the  fixed  I'esidence,  home,  or  domicil^  (B). 

Illustrations. 


I.  E.  was  married  to  C.  in  1847,  and  lived  with  him  for  three  years  in 
L.,  when,  on  account  of  his  dissipated  habits,  slie  left  him,  and  went  to 
live  in  another  place.  Here,  in  1861,  she  is  married  to  T.,  believinji  C. 
to  be  dead.  C.  turns  out  to  be  living.  There  is  no  presumption  that  C. 
was  dead  when  T.  married  her,  and  he  is  guilty  of  adultery.^ 

II.  *E.  was  married  to  S.  in  New  Jersey  in  1848,  In  1853  she  left  him, 
and  went  to  reside  in  California.  In  a  suit  in  California  in  1868,  she  tes- 
tifies that  she  has  not  heard  of  S.  since  1850.  There  is  no  presumption 
that  S.  was  dead  in  1864.* 

III.  The  question  is  whether  A,  is  alive.  It  is  proved  that  A.  has  not 
been  heard  of  in  H.  for  twenty  years.     There   is  no   evidence   that  A. 


1  Hayes  v.  Bewick,  2  Mart.  (La.)  131;  5Ain.  Dec.  727   (1812);  Watson  v.  Tindal, 
24  G  a.  404  (IS.'JS). 

2  Wentworth  v.  Wentworth,  71  Me.  83  (1S80) ;  Bailey  v.  Bailey,  3G  Mich.  185  (1877) ; 
Brown  v.  Jewett,  18  X.  II.  230  (181G), 

3  Com.  V.  Thompson,  11  Allen,  25  (1865). 
*  Garwood  v.  Hasings,  S8  Cal.  229  (1SG9), 


RULE    44.]  THE    ruESUMITIOX   OF   DEATH.  213 

ever  osttiblishecl  his  residence  in  11.     There  is  no  presumption  tliat  A.  is 
dead.i 

IV.  A.  dies  in  Missouri  in  1803.  Her  son  J.  is  at  the  time  residing  in 
Louisiana.  Nothing  has  been  heard  in  Missouri  of  J.  for  over  seven  years. 
There  is  no  presumption  from  this  that  J.  is  dead.- 

In  easel,  the  trial  judge  instracted  the  jury  that  when 
a  wife  departs  from  her  husband  and  remains  absent  and 
distant  from  him,  without  knowledge  or  inquiry  respecting 
him,  no  presumption  of  his  death  arises  from  the  fact  that 
she  had  not  heard  from  him  for  seven  years,  which  would 
justify  her  in  marrjing  and  cohabiting  Avith  another  man, 
and  justify  another  man  in  marrying  and  cohabiting  with 
her.  In  the  Supreme  Court  this  was  affirmed.  **  The  most 
favorable  view,"  said  Dewey,  J.,  **  in  which  this  defense 
could  be  sustained  was  that  stated  in  the  former  opinion, 
that  if  it  appeared  that  the  husband  had  absented  himself 
from  his  wife  and  remained  absent  for  the  space  of  seven 
3'ears  together,  a  man  who  should,  under  the  existence  of 
such  circumstances,  and  not  knowing  her  husband  to  have 
been  living  within  that  time,  in  good  faith  and  in  the  belief 
that  she  had  no  husband,  intermarry  with  her  and  cohabit 
with  her  as  his  wife,  w^ould  not  by  such  act  be  criminally 
punishable  for  adultery,  although  it  should  subsequently 
appear  that  the  former  husband  was  still  living.  But  the 
case  is  wanting  in  one  of  the  essential  facts  stated  as  the 
foundation  for  a  right  to  presume  the  death  of  her  husband. 
It  is  only  to  the  person  who  leaves  his  home  or  place  of 
residence,  and  is  gone  more  than  seven  years  and  not  heard 
of,  that  this  presumption  is  applicable.  Here,  the  wife 
went  away,  and  the  husband,  for  aught  that  appears, 
remained  at  Lawrence,  or  in  the  vicinity.  *  ♦  *  Wq 
see  no  sufficient  ground  for  any  presumption  of  the  death  of 

1  Stinchfleld  r.  Eniernon,  52  Me.  405  (I^SBO). 

3  McKee  v.  Copelin,  2  Cent.  L.  J.  S13  (1S75).  "Although  persons  absenting  them- 
selves bej-ond  sea  or  elsewhere  for  seven  years  successively  are  to  be  presumed 
dead,  yet,  as  Imlay  has  not  been  proven  to  have  so  absented  himself  from  the  coun- 
try of  his  residence,  his  death  ought  not  in  the  present  contest  to  bj  i)re6umed." 
Spurrr.  Trimble,  1  A.K.  JIarsh.  279  (1818).  rresumption  of  death  will  not  ho  made 
as  to  one  who  has  acquired  a  home  and  domicil  in  another  state ;  and  this  is  known 
in  the  State  of  his  former  residence.    Smith  v.  Smith,  49  Ala.  150  (1873). 


214  PREsmiPTivE  EVIDENCE.  [kule  44. 

the  husband  upon  which  the  wife  of  C.  or  the  defendant 
could  properly  have  acted.  The  Superior  Court  very  cor- 
rectly marked  the  distinction." 

In  case  II.  it  was  said  :  *'  A  person  who  is  shown  to  have 
been  absent  from  the  State  or  place  of  his  residence  for  a 
jieriod  of  seven  years  without  any  intelligence  having  been 
received  from  him  by  his  family,  acquaintances,  or  others 
who  continue  in  the  immediate  neighborhood  of  such  resi- 
dence, is  presumed  to  be  dead.  Such  absence  must  be 
shown  to  have  been  from  his  last  known  place  of  residence. 
In  this  case  no  such  proof  is  made.  It  is  not  shown  that 
Ebenezer  Sooy  ever  acquired  a  residence  in  this  State;  for 
aught  that  appears,  his  residence  may  have  been  in  the 
State  of  New  Jersey  since  his  marriage  in  1848.  The  wit- 
ness, Eliza  S.  Kinsey,  who  was  married  to  Sooy  in  New 
Jersey  in  1848,  by  her  own  testimony,  is  found  residing  in 
San  Francisco,  Cal.,  as  early  as  1853,  five  years  after  her 
marriage  with  Sooy,  underau  assumed  name,  since  which  time 
she  has  taken  several  other  names,  but  so  far  as  shown  at  no 
time  has  she  recognized  the  name  of  Sooy.  Her  own  testi- 
mony raises  a  very  strong  probability  that  since  coming  to 
California  she  endeavored  to  evade  and  conceal  herself  from 
her  first  husband  Sooy.  Under  such  circumstances  I  do 
not  think  a  presumption  of  Sooy's  death  can  properly  arise 
from  her  simple  statement  that  she  has  not  seen  or  heard 
from  him  for  seventeen  years." 

B. 

I.  In  1813  C.  left  her  residence  in  N.  Y.  and  went,  to  reside  in  B.  Siie 
was  heard  of  in  1820  through  letters  received  from  Iier  written  from  B. 
There  is  no  presumption  that  she  was  dead  in  1828  from  the  fact  alone 
that  her  relatives  in  N.  Y.  have  not  heard  from  her  after  1820.1 

II.  In  1840  T.  moves  his  family  to  Salt  Lake  City  from  Kentucky.  The 
fact  that  they  have  not  been  heard  from  in  Kentucky  for  twenty-live  year^ 
does  not  raise  a  presumption  that  they  are  dead.' 

III.  A.  left  England  in  1829  to  reside  in  America.  In  June,  1831,  his 
brother-in-law  received  a  letter  froni  a  stranger  in  New  York  soliciting 


1  McCartee  v.  Camel,  1  Barb.  Ch.  403  (1846). 

2  Grey  v.  McDowell,  6  Bush,  482  (186&). 


RULE    45.]  THE   TRESUMPTION   OF   DEATH.  215 

aid  for  A.,  and  stating  that  ho  had  changed  his  name  to  B.  Three 
months  latur  A.'s  wife  sent  a  letter  to  A.,  addressed  to  B.,  but  tlie  person 
to  Avhom  it  was  Intrusted  couhl  not  find  liini.  He  was  not  lieard  of  any 
more,  and  no  subsequent  inquiries  were  made.  There  is  no  presumption 
tlial  A.  died  in  1838.1 

Even  when  a  person  whose  existence  is  in  question  has 
remained  beyond  sea  for  seven  years,  it  was  said  in  case  I., 
"  if  ho  had  a  known  and  fixed  residence  in  a  foreign  country 
when  lie  was  hist  heard  from,  he  ought  not  in  justice  to  be 
presumed  dead  without  some  evidence  of  inquiries  having 
been  made  for  him  at  such  known  phice  of  residence  with- 
out success.  For  the  average  duration  of  life  of  persons 
under  sixty  years  of  age  is  more  than  twice  seven  years, 
and  in  the  present  state  of  society  in  this  and  other  commer- 
cial countries  no  presumption  of  the  death  of  an  individual 
does  in  fact  arise  from  tiio  mere  circumstance  that  he 
has  fixed  his  domicil  abroad,  and  has  not  been  heard  of  at 
tlie  place  of  his  birth  or  of  his  original  residence  for  more 
than  seven  years." 

In  case  III.  the  vice-chancellor  said  that  unless  it  was 
proved  or  admitted  that  no  further  information  of  A.  could 
be  obtained,  he  could  not  presume  A.  dead.  Nothing  had 
been  shown  to  have  been  done  in  the  way  of  effectual 
inquiry. 

RULE  45.  — *' Persons  who  would  naturally  have  hoard 
of  him  "  within  Rule  43  is  not  confined  to  a  particular 
class;  they  may  be  relatives  or  strangers.- 

Illustratioyis. 

I.  The  question  is  whether  A.,  who  went  from  IMassachusctts  to  Cali- 
fornia in  1850,  is  living  In  18G0.  Evidence  that  various  persons  —  not 
relatives  of  his  —  had  heard  from  him  in  1856  is  admissible.* 

1  Re  Creed,  1  Drcwry,  235  (1S52) .  Rut  the  rule  is  different  where  by  statute  "a 
person  absent  for  seven  years  is  presumed  to  be  dead."  Absence  for  the  time  with- 
out proof  of  inquiry  is  sufllcient  prima  facie  evidence.  Smith  r.  .<^mitli,  6  X.  J.  Eq. 
4S4  (1840)) ;  and  see,  Osborn  v.  Alien,  2t)  N.  J.  L.  3S8  (1S57) ;  Wambaugh  v.  Schenck,  2 
N.  J.  L.  1G7  (1S07). 

2  Wentworih  v.  Wentworth,  71  Me.  73  (1880) ;  Bailey  v.  Bailey,  36  Mich.  18.5  (1877). 

3  Flynn  v.  Colfee,  12  Allen  i;i:5  (1SG6) ;  Doe  v.  Deakin,  4  P..  &  Aid.  4:5:5  (1821).  In 
Clarke  r.  Cuuimings,  5  Barb.  Sbi  (1849),  it  was  said:  "What  is  a  reasonable  search 


21G  PRESUMPTIVE  EVIDENCE.        [rULE  46. 

In  case  I.  it  was  said  that  there  is  no  rule  of  law  which 
confiues  such  intelligence  to  any  particular  class  of  persons. 
It  is  not  a  question  of  pedigree.  *'  If  the  demandant's 
husband  had  been  heard  of  as  living  within  seven  years, 
though  by  persons  not  members  of  his  family,  it  would  cer- 
tainly affect  the  presumption  upon  which  she  relied." 

RULE  46.  —  "  Not  been  lieard  of  "  witliin  Rule  43  means 
that  none  of  the  "  persons '*  referred  to  in  Rule  45 
have  heard  any  thing  about  him  which  sliould  or 
would  raise  a  reasonable  doubt  in  his  or  her  mind 
that  he  really  was  no  more. 

Illustration 

I.  The  life  of  N.  being  insured  in  a  life  insurance  company,  an  action 
was  brought  on  the  iiolicy  in  1874,  and  the  question  was  whether  N.  was 
then  dead.  He  had  left  his  home  in  England  for  Australia  in  18G7,  and 
had  not  been  heard  of  or  seen  by  any  one  since,  except  as  follows :  A  niece 
of  his,  one  Mrs.  C,  being  in  Melbourne  in  January,  1872,  saw  a  man  on  the 
street  whom  she  believed  to  be  her  uncle  N.,  but  he  was  lost  in  the  pass- 
ing crowd,  and  she  was  not  able  to  speak  to  him.  She  wrote  of  this  to 
her  mother  and  on  returning  to  England  spoke  of  it  to  the  relatives,  but 
they  all  thought  her  mistaken.  If  the  evidence  of  Mrs.  C.  was  believed, 
N.  had  been  "  heard  of"  within  the  seven  years;  but  if  it  was  not  believed, 
on  reasonable  grounds,  then  N.  had  not  "been  heard  of"  within  the  rule,  i 

In  case  I.  the  trial  judge,  after  telling  the  jury  that  not 
being  "  heard  of  "  meant  that  no  member  of  the  family  had 
heard  anything  about  him  which  might  raise  a  reasonable 
doubt  in  their  minds,  whether  he  was  dead,  added;  "  You 
can  not  say  that  a  man  has  never  been  heard  of,  when  in  the 
first  place  one  of  his  nearest  relations  comes  and  says  she 
saw  him  alive  and  well  within  three  years  ;  still  less  can  you 


and  inquiry  for  the  lives  upon  the  continuance  of  which  the  estate  of  the  defendant 
in  this  case  was  made  by  tiie  terms  of  tlie  lease  to  depend,  Is  a  mixed  question  of 
law  and  fact  to  be  determined  upon  the  particular  circumstances  of  the  case. 
What  would  be  reasonable  in  one  case  might  not  be  in  another.  I  am  of  the  opinion 
that  the  circumstances  may  be  such  as  to  render  an  inquiry  of  the  tenant  only  a 
reasonable  inquii-y.  If  it  were  pi'oved  that  the  tenant  were  the  only  relation  of  the 
y)erson  whose  life  was  in  question  living  in  the  vicinity  of  the  lands,  then  an  inquiry 
of  the  tenant  would  bo  enough;"  and  see  Gillelandt'.  Martin,  3  McLean,  400  (1844). 
1  Prudential  Assurance  Co.  v.  Edmonds,  3  App.  Gas.  487  (1877). 


RULE    4G.]  TIIK    rRESUMPTIOX    OF    DEATH.  217 

say  that  he  has  never  been  heard  of  uhcn  every  member 
of  tlic  family  states  that  they  heard  that  which  is  now 
stated."  On  appeal  this  was  held  crnn-.  "  The  direc- 
tion," said  Lord  Chancellor  Ilatherly,  "seems  to  me  to 
come  to  this  :  In  the  first  place,  if  the  jurymen  behoved 
Mrs.  C.'s  assertion  to  be  correct,  and  thought  she  had  seen 
him  alive  and  well,  of  course  that  ends  the  case.  But  then 
he  adds :  '  Still  less  can  you  say  that  ho  has  never  been 
heard  of  when  every  member  of  the  family  states  that  they 
heard  that  which  is  now  stated.'  Now  as  far  as  that  extends, 
if  it  remained  there,  there  Avould  have  been  great  reason 
for  the  jurymen  to  infer  from  that  direction  that  it  would 
be  impossible  for  them  whatever  might  be  the  value  of  Mrs. 
C.'s  evidence,  to  consider  the  presumption  as  arising  when 
every  member  of  the  family  had  heard  what  she  said, 
because,  be  it  true  or  be  it  not  true,  the  fact  of  their  having 
heard  it  would  prevent  the  assumption  arising.  I  think  that 
would  he  the  reasonable  inference  from  that  language ;  but  I 
think  it  becomes  clearer  as  you  go  on,  that  that  would  be  the 
interpretation  that  w^ould  force  itself  upon  the  mind  of  the 
jury,  because  what  the  learned  lord  chief  baron  goes  on  to 
say  is  this :  *  You  can  not  have  any  one  called  before  j'ou 
that  saw  him  die,  or  saw  him  buried.  You  have,  therefore, 
no  direct  evidence,  except  the  evidence  that  he  was  alive  two 
or  three  years  ago ;  on  the  other  hand  you  have  no  evidence 
whatever  upon  which  you  could  found  the  presumption 
that  he  is  dead,  that  is,  that  he  has  never  been  heard  of  by 
any  of  his  relations  for  the  space  of  seven  years,  when  you 
find  that  every  one  of  the  relatives  has  come  forward,  and 
every  one  of  the  relatives  heard  that  he  was  alive.'  There- 
fore it  appears  to  me  that  the  lord  chief  baron  plainly  and 
distinctly  directed  the  jurymen  that  they  had  no  evidence 
before  them  at  all  upon  which  the  presumption  of  law  could 
arise,  because  the  presumption  of  law  requires  that  those 
relatives  should  not  have  heard  of  him,  and  3'ou  find  that 
all  those  relatives  did  hear  of  him.     Of  course,  in  reality. 


218  PRESUMPTIVE    EVIDEXCE.  [rULE    46. 

that  turns  upon  whether  they  believed  Mrs.  C.  or  not,  and 
whether  the  rcUitives  havinf^  heard  of  lihn  from  her,  they 
were  bound  to  accept  that  as  knowledge  and  so  the  pre- 
sumption of  death  should  be  disposed  of.  On  the  other 
hand,  my  lords,  1  apprehend  that  that  is  not  the  law  at  all. 
That  would  not  be  such  a  hearing  as  could  lead  you  to  a  rea- 
sonable ground,  for  believing  that  the  man  was  alive  within 
the  epoch.  I  apprehend,  my  lords,  that  the  jurymen  are 
not  here  directed,  as  it  appears  to  me  they  ought  to  have 
been,  that  the  evidence  given  by  the  members  of  the  family, 
as  to  not  having  heard  of  him  was  fit  to  found  the  presump- 
tion upon  if  they  came  to  the  conclusion  that  Mrs.  C.'s 
story  was  not  to  be  believed.  On  the  contrary,  it  seems  to 
have  been  laid  down  in  clear  and  precise  terms,  that  if  every 
member  of  the  family  has  heard  of  him,  whether  by  a  credi- 
ble story  or  not,  then  there  is  a  probability  of  his  being 
alive,  and  the  presumption  of  death  would  not  arise." 
And  Lord  Blackburn  in  the  same  case  added:  "The 
plaintiff  had  failed  in  proving  the  actual  death  of  Eobert 
Nutt,  and  then  he  relied  upon  the  rule  of  law  which  is  gen- 
erally laid  down  in  something  like  these  terms:  If  a  man 
has  not  been  heard  of  for  seven  years,  that  raises  the  pre- 
sumption that  he  is  dead.  It  is  generally  so  enunciated. 
I  do  not  say  that  that  is  the  correct  way  of  enunciating  it, 
but  I  think  it  may  be  fairly  enough  put  in  those  words  for 
this  purpose.  I  think  having  regard  both  to  the  reason 
of  the  thing  and  the  decisions,  we  must  take  '  not  being 
heard  of '  in  a  certain  sense.  There  was  seldom  or  never  a 
man  who  had  reached  the  age  of  forty  with  regard  to  whom 
it  would  not  be  easy  to  call  scores  of  people  to  say,  *  I  was 
at  school  with  him,  I  knew  him  perfectly  well,  and  I  have 
not  heard  of  him  for  the  last  seven  years.'  But  that  would 
not  be  enough  to  raise  a  presumption  that  he  was  dead, 
because  if  ever  so  much  alive,  those  people  might  not  have 
heard  of  him.     My  lords,  it  appears  from  the  case  of  Doe 


RULE   46.]  THE   PRESUJIPTION   OF   DEATU.  219 

V.  Andreiv,^  that  it  is  nccess.iiy,  in  order  to  raise  the  pre- 
sumption, that  there  should  have  been  an  inquiry  and  search 
made  for  the  man  among  those  who,  if  lie  was  alive,  would 
be  likely  to  hear  of  him.  Perhaps  it  is  not  quitean  analogy, 
but  it  is  something  like  the  case  of  a  search  for  documents  ; 
before  you  are  allowed  to  give  secondary  evidence  of  a 
document,  you  must  search  the  places  where  the  document 
would  in  the  natural  course  of  thinj^s  be,  if  it  were  still  in 
existence  ;  and  having  proved  that  you  have  done  that,  you 
may  then  give  your  secondary  evidence.  In  like  manner, 
in  order  to  raise  a  presumption  that  a  man  is  dead  from  his 
not  having  been  heard  of  for  seven  years,  you  must  inquire 
amongst  those,  who  if  he  was  alive,  would  be  likely  to  hear 
of  him,  and  see  whether  or  no  there  has  been  such  an 
absence  of  hearing  as  would  raise  the  presumption  that  he 
was  dead.  In  this  case  the  plaintiff  undertook  to  do  that, 
and  called  first  a  witness  who  said  so,  but  afterward  said 
tliat  ho  *  had  heard  a  report  that  a  Mrs.  C.  had  seen  him  '  in 
Australia,  but  that  he  did  not  believe  it.  I  am  inclined  to 
think  that  having  heard  a  report  would  hardly  be  such  a  mat- 
ter as  would  prevent  the  fact  of  the  witness  saying  he  had  not 
heard  of  him  being  evidence  as  far  as  it  went.  *  *  * 
Supposing  the  jurymen  had  found,  as  a  fact,  that  they 
thought  she  was  mistaken,  would  or  would  not  the  grounds 
have  existed  upon  which  the  presumption  from  a  seven 
years'  absence  would  arise  that  the  man  not  heard  of  was 
dead?  I  think  certainly  they  would.  It  seems  to  me  that 
when  she  said,  '  I  have  seen  the  man  in  the  streets  of  Mel- 
bourne,' it  upset  the  presumption  arising  from  the  relatives, 
including  herself,  never  having  seen  or  heard  of  him,  and  it 
turned  the  onus  the  other  way.  It  was  possible,  however,  that 
it  might  have  been  proved  that  the  man  she  saw  was  not 
Robert  Nutt,  but  somebody  else.  If  that  had  been  proved 
it  would  have  lel't  the  matter  just  as  if  she  had  never  made 
that  statement.     When  she  said  she  thought  she  had  seen 

1  15  Q.  B.  751. 


220  PRESU-AIPTIVE    EVIDENCE  [iJULE    4G. 

him,  and  all  the  others  had  heard  it  from  her,  although  that 
unexplained  and  uncontradicted  statement  affected  the  omis, 
yet  as  soon  as  it  was  made  out  by  satisfactory  evidence  that 
she  \vas  mistaken,  the  hearing  from  her  was  gone,  and  the 
presumption  would  remain  as  it  was  before.  Kow,  my 
lords,  of  course  it  is  essential  for  the  purpose  of  saying 
whether  the  proper  direction  was  given  by  the  judge  or  not 
to  see  what  the  proper  direction  would  have  been,  and  then 
to  see  if  that  which  would  have  been  the  proper  direction 
was  given  to  the  jury.  I  think  jurymen,  who  were  not 
lawyers  —  nay,  I  think  many  lawyers  themselves,  —  would 
be  under  the  impression  that  the  commonly  enunciated  rule 
about  a  man's  not  being  heard  of  for  seven  years,  would 
mean  that  there  has  not  been  a  physical  hearing  of  him, 
and  that  if  the  relatives  had  been  told  of  somcthinsr  which 
haj^pened  within  the  seven  years,  from  which  they  believed 
that  he  was  alive,  that  would  be  a  hearing  of  him,  and  that 
would  put  an  end  to  the  presumption,  though  it  might  be 
proved  that  the  information  so  brought  to  the  relatives  was 
positively  untrue.  I  can  not  think  that  but  they  might 
think  it.  They  might  imagine  that  the  rule  of  law  was 
absolute  and  positive  that  hearing  was  enough.  If  that  be 
so,  I  take  it,  that  it  is  clear  that  the  lord  chief  baron 
ought  to  have  given  them  a  direction,  that  in  the  event 
of  their  coming  to  the  conclusion,  whether  rightly  or 
wrongly,  that  Mrs.  C.  was  mistaken  when  she  said  she  saw 
her  uncle,  and  that  she  did  not  see  him,  then  there  was  an 
absence  of  ground  for  believing  that  he  was  alive  within  the 
seven  years,  the  period  sufficient  to  raise  the  presump- 
tion. *  *  ♦  Now  what  are  the  jurymen  told?  They 
are  told,  *  not  being  heard  of,  means  this,  that  no  member  of 
the  family  has  heard  any  thing  about  him  which  might  raise  a 
reasonable  doubt  in  their  minds  whether  he  must  have  been 
no  more.'  I  do  not  think  that  in  the  circumstances  that  is 
strictly  correct,  because  I  think,  though  it  might  raise  a 
reasonable  doubt,  which  would  of  course  shift  the  presump- 


nULE    4G.]  THE    PRESUMPTIOX    OF    DEATH.  221 

tion,  yet  the  facts  might  be  made  clear  the  other  way,  and 
it  might  be  shown  that  the  reasonable  doubt  was  not  well 
founded  as  in  this  supposed  case.  If  a  respectable  person 
came  and  said  your  brother,  whom  you  think  to  be  dead,  is 
alive;  I  saw  him  and  spoke  to  him  yesterday;  everyone 
must  feel  that  would  raise  a  reasonable  doubt,  and  that,  if 
undisputed,  it  would  put  an  end  to  the  seven  years'  pre- 
sumption. But  supposing  the  other  side  should  be  able  to 
call  witnesses  to  satisfy  the  jury  that  the  person  who  thought 
that  he  had  seen  him  was  quite  mistaken,  was  deceived,  the 
relatives  having  previously  believed  that  the  man,  Avho  had 
told  them  he  had  seen  the  brother,  was  telling  them  the 
truth,  could  it  be  said,  after  it  was  proved  that  the  man 
who  told  them  that  had  been  cheated  into  the  belief  that  he 
had  seen  the  brother,  could  it  be  said  that  that  evidence,  so 
explained,  put  an  end  to  the  presumption  arising  at  the  end 
of  seven  years  ?  I  apprehend  not ;  yet  the  wording  of  the 
lord  chief  baron  in  the  first  line  might  have  led  the  jury  to 
think  so  ;  and  I  must  acknowledge  that  when  I  read  the 
whole  through,  I  think  it  did  lead  the  jury  to  think  so; 
whether  so  meant  or  not.  *  *  «  j  have  already  said 
that  verbal  criticism  ought  not  to  be  applied  in  a  case  like 
this;  but  looking  at  the  particular  circumstances  before 
them,  and  the  particular  contention  of  the  plaintiff  's  coun- 
sel, as  set  out  in  the  bill  of  exceptions,  I  can  not  help  think- 
ing that  that  would  be  understood  by  the  jury  to  mean :  If 
Robert  Nutt  has  been  heard  of,  no  matter  how  or  where, 
and  even  you  are  satisfied  that  the  hearing  was  founded 
upon  a  mistake,  that  mere  fact  of  hearing  is  enough.  That 
I  think  would  be  a  misdirection.  »  *  *  I'lie  learned 
chief  baron  says  :  There  is  no  evidence  ;  had  he  said.  Unless 
you  think  that  the  3'oung  woman's  recognition  was  mis- 
taken, there  is  no  evidence  which  would  raise  the  pre- 
sumption; but  if  it  is  proved  alErmatively  to  your  minds 
that  she  was  mistaken,  there  is  evidence  which  would  raise 
the  presumption;  — had  he  said  that,  it  would  have  been 
allriL^ht." 


222  PRESUMPTIAE   EVIDENCE.  [rULE   49. 

RUIjE  47.  —  The  absentee's  "residence,  home  or  domi- 
cil,"  within  Kule  44  refers  to  that  place  which  he 
first  departed  from,  and  does  not  include  places  where 
he  may  have  afterward  resided  or  visited. 

Illustration. 

I.  In  1843  C,  who  resided  with  his  wife  and  family  in  H.,  left  there, 
leaving  his  wife  and  family  behind.  Letters  were  received  fi*om  him 
from  parts  of  Illinois  until  1849,  since  when  he  was  never  heard  of. 
The  presumption  is  that  C,  died  in  1856.^ 

It  was  argued  in  case  I.  that  before  the  presumption 
could  arise,  the  party  must  be  proved  to  be  absent  from  his 
last  residence  or  place  of  abode  for  seven  years.  But  it 
"vvas  answered  by  the  court  that  if  this  were  so,  the  longer 
he  was  absent  the  stronger  would  be  the  proof  that  he  had 
changed  his  domicil,  and  therefore  the  proof  that  he  was 
absent  from  home  would  be  diminished.  The  cases  do  not 
sustain  the  distinction  contended  for  nor  does  it  rest  oa  a 
sound  and  logical  foundation. 

KULE  48.  —  But  the  presumption  will  arise  that  the 
death  of  the  absentee  has  occurred  before  the  expi- 
ration of  the  seven  years  from  being  last  heard  of, 
where  any  of  the  following  circumstances  are  shown, 
viz.:  See  Rules  49,  50,  51,  52. 

RULiE  49.  —  That  within  that  time  he  was  in  a  des- 
perate state  of  health. 

Illustrations. 

I.  In  1780,  J.  left  his  home  for  a  visit,  to  return  in  six  months.  He 
was  then  in  a  "  desperate  state  of  health."  He  never  returned,  and  was 
not  afterwards  heard  of.  In  1803,  the  question  was  whether  J.  or  S., 
who  died  in  1785,  had  survived  the  other.  The  presumption  is  that  S. 
survived  J.2 


1  Winship  v.  Conner,  42  N.  II.  344  (18G1.) 

2  AVebster  v.  Birchmore,  13  Ves.  362  (1807) ;  and  see  Eagle's  Case,  8  Abb.  (Pr.)  218 
(1830J ;  or  was  of  grossly  intemperate  habits  when  last  heard  ol,  btonvenel  v. 
Stephens,  2  Daly,  323  {ItsHS). 


RULE    50.]  THE    PKESUMPTION    OF    DEATH.  223 

II.  In  July,  1852,  H.  quitted  England  for  America,  and  wrote  home 
announcing  his  safe  arrival  in  New  York.  He  was  in  declining  health 
when  he  left  home,  and  from  his  character  and  habits  would  have  been 
likely  to  have  kept  up  his  correspondence.  He  was  never  afterwards 
heard  of.  In  September,  1853,  his  father  died.  The  presumption  is  that 
II.  died  in  his  father's  lifetime. ^ 

III.  It  is  shown  in  a  case  arising  in  1843  that  H.,  whose  deposition 
was  taken  in  1822,  was  then  fifty-nine  years  old  and  in  ''bad  health." 
Tills  does  not  rebut  the  presumption  that  he  is  alive,  the  phrase  "bad 
health"  not  being  specific  enough.^ 

In  case  III.  it  was  said :  «'  Neither  does  the  circumstance 
that  the  witness  was  in  *  bad  health  '  in  1822,  infer,  as 
necessary  consequence,  that  he  is  now  dead.  The  difficulty 
is  here,  that  the  expression  ♦  bad  health  '  is  undeterminable. 
There  are  manifold  sorts  of  bad  health  and  many  degrees 
in  most  of  them.  Show  me  that  H.  was  the  subject  of 
some  quick,  consuming  disease  or  of  any  specific  malady 
at  all,  and  you  will  change  the  case.  Suppose  that  his  bad 
health  was  temporaiy,  or  that  the  expression  means  only 
that  his  health  was  not  robust.  A  man  in  bad  health  at  one 
time  may  recover  afterward;  that  depends  entirely  upon 
the  nature  of  his  disorder  and  mode  of  treatment  and 
vjo-or  of  his  constitution.     And   the  valetudinarian  often 

c 

prolongs  an  existence  beyond  him  who  in  the  carelessness 
of  health  may  be  suddenly  cut  down.  "  In  the  case  cited 
from  13  Vesey^  the  health  was  very  bad  —  the  chancellor 
speaks  of  it  as  despey^ate.'' 

RTTLE  50  —  That  within  that  time  he  embarked  on  a 
vessel  which  has  not  since  been  heard  of  and  is  h)ng 
overdue  (A),  inquiries  having  been  made  at  her  ports 
of  departure  and  destination  (B). 

Illustrations. 

A. 

I.  In  1842,  M.  sailed  on  a  vessel  going  from  Y.  to  B.  The  ordinary 
voyage  from  Y.  to  B.  lasts   a   mouth.     The  vessel  ou  which  M.  sailed 

1  Diinby  v.  Danby,  5  Jur.  (X.  S.)  54  (1S59). 
a  Kc  Hall,  1  Wall.  Jr.  85  (l^Z). 
*  Webster  v.  Birchmore. 


224  PRESUMPTIA'K    EVIDENCE.  [rULE    50. 

neror  ivarhcrl  B.     The  question  being,  in  1S45,  v^-hclhcr  M.  is  now  aiive, 
the  presumi^ion  is  that  ho  is  dcad.i 

II.  On  :March  11,  IS'll,  J.  sailed  from  New  York  to  Liverpool  on  the 
slearaship  President.  Nothing  was  ever  heard  of  the  ship  or  of  any 
person  who  sailed  in  her  after  she  left  the  harbor  of  New  York.  The 
ordinary  time  for  steam  passages  across  the  Atlantic  from  New  York  at 
this  time  was  fourteen  or  fifteen  days,  the  longest  did  not  exceed  twenty- 
four  days.  The  ordinary  passage  of  sailing  vessels  was  thirty  days,  the 
longest  forty.  The  question  is  whether  J.  was  alive  on  May  1,  1841. 
The  presumption  is  that  he  was  dead  at  that  time.' 

III.  Captain  T.  departed  with  his  vessel,  The  Helena,  on  a  voyage, 
the  ordinary  limit  of  which  was  four  months.  Seventeen  months  expired, 
and  nothing  was  heard  of  her  or  the  crew.  Seventeen  months  was  more 
than  sufficient  to  have  heard  from  all  the  commercial  ports  in  the  Avorld. 
The  presumption  at  the  end  of  this  time  is  that  the  vessel  was  lost,  and 
that  those  on  board,  including  Captain  T.,  have  perished. ^ 

IV.  G.  was  commander  of  the  United  States  sloop  of  war,  Albany, 
which  left  Aspinwall  for  New  York  September  28,  1854:.  Up  to  November 
1,  1855,  nothing  had  been  heard  of  G.  or  any  of  the  officers  or  crew  of 
the  vessel.  In  an  action  brought  by  G.,  and  pending  at  that  time  in  the 
New  I'ork  courts,  judgment  was  entered  in  his  name  on  November  27, 
1854.  Eighteen  days  is  the  outside  time  for  a  passage  from  Aspinwall  to 
New  York.  The  presumption  is  that  G.  was  dead  on  November  27th,  and 
the  judgment  is  void.* 

V.  On  January  27, 1857,  M.  sailed  from  Liverpool  to  Valparaiso.  The 
voyage  should  have  been  made  in  ten  weeks.    In  January,  1858,  nothing 


1  VThite  V.  Mann,  26  Jle.  363  (1841) ;  Patterson  v.  Black,  Park,  on  Ins.  919 ;  "Watson 
V.  Maxwell,  1  Stark.  121  (1S15) ;  Re  Ilutton,  1  Curt.  595  (1837) ;  Re  Cook,  Ir.  Rei).  5  Eq. 
240  (1S71) ;  Eagle's  Case,  3  Abb.  Pr.  218  (1836). 

2  Oppcnheim  v.  De  Wolf,  3  Sandf.  Ch.  571  (1846). 

3  Merritt  v.  Thompson,  1  Hilt.  550  (1858).  An  interesting  note  is  appended  to  the 
report  of  this  case  as  follows;  "  This  case  was  decided  in  New  York  City,  April  3, 
1858,  and  five  days  later  the  following  paragraph  appeared  in  the  New  York  Tribune: 
'A  Lost  Captain  Found.  The  New  Y'ork  correspondent  of  the  Boston  Journal  states 
that  some  three  years  ago  the  report  reached  New  Y'ork  that  the  ship  Helena  was 
lost.  Her  commander,  Captain  Thompson,  had  with  him  liis  son,  and  left  in  New 
Y'ork  his  wife  and  several  children.  Ilis  cargo  was  a  load  of  coolies;  and  it  was 
lielieved  that  the  cargo  had  risen  and  murdered  the  crew.  The  insurance  office 
paid  the  policy,  and  an  administrator  Avas  appointed  for  the  estate.  But  Mrs. 
Thompson  has  had  unwavering  faith  that  her  husband  and  son  were  alive  and 
would  both  return.  This  week  a  vessel  arrived  at  this  port,  and  states  tliat  they 
passed  and  liailed  a  vessel  bound  for  China,  which  had  on  board  Captain  Thompson 
and  crew  of  the  Helena.  Tlie  news  has  been  hailed  with  joy,  and  public  thanks- 
giving was  given  last  Sabbath  in  the  Mariner's  Church.  Upon  inquiry,  however, 
this  was  not  the  Captain  Thompson  referred  to  in  tlie  above  case;  nor  has  he  nor 
his  vesssel  since  been  heard  of."  The  result  justified  the  legal  presumption  in  this 
case  at  least. 

«  Gerry  v.  Post,  13  How.  (Pr.)  118  (185£). 


RULE    50.]  THE    rilESUMI'TIOX   OF   DEATH.  225 

has  since  been  heard  of  the  vessel  or  its  crew.     The  presumption  is  that 
M.  is  dead.i 

In  case  I.  it  was  said  tLiat  insurance  companies,  recog- 
nizing the  inference,  were  in  the  habit  of  l)ayii)g  insurance 
on  vessels  after  the  hipse  of  a  ycav  wiien  a  vessel  sailed 
from  an  American  to  a  European  port  and  was  not  beard 
of.  '*  One  who  has  sailed  in  a  vessel  which  has  never  been 
heard  of  for  such  length  of  time  as  would  be  sufficient  to 
allow  information  to  be  received  from  any  i)art  of  the 
world  to  which  the  vessel  or  persons  on  board  might  have 
been  expected  to  be  carried,  and  who  has  never  been  heard 
of  since  the  vessel  sailed,  may  be  presumed  to  be  dead." 

In  case  II.  it  was  said:  "  The  decisive  point  is  the  time 
of  J.'s  death.  The  precise  time  will  never  be  known  till 
the  mighty  deep  gives  up  its  dead  at  the  last  great  day. 
For  the  purpose  in  hand  we  must  have  recourse  to  the  dic- 
tates of  common  experience  and  legal  presumptions.  J. 
departed  from  this  port  on  the  steamship  President,  on  the 
11th  day  of  March,  184:1.  Nothing  has  ever  been  heard 
of  the  vessel  or  of  any  of  her  passengers  or  crew  from  that 
day  to  the  present.  The  usual  time  for  steam  passage 
across  the  Atlantic  from  New  York  has  been  fourteen  or 
fifteen  days,  and  the  longest  passages  have  not  exceeded 
twenty-three  or  twenty-four  days.  Forty  days  is  a  long 
passage  from  hence  to  England  in  a  sailing  vessel  of  ordi- 
nary quality,  and  the  outward  trips  of  our  packet  ships  are 
seldom  be3'ond  thirty  days  and  oftener  under  twenty-five. 
These  are  facts  forming  a  part  of  the  experience  and  com- 
mon knowledge  of  the  day,  and  as  such  are  legitimate 
ground  for  the  judgment  of  the  court.  Now  it  is  very 
true  that  the  ill-falcd  President  may  have  become  disabled 
and  drifted  about  for  weeks  and  weeks,  before  she  was 
finally  engulfed  by  the  waves  of  the  Atlantic.  But  what 
was  her  probable  fate?  A  regular  and  tolerabl}^  fair  pas- 
sage would  have  carried  her  to  England  before  the  last  day 

^^  1  ReMain,  1  Sw.  &Tr.  11  (1S58). 


22o  PRESUMPTIVE  EVIDENCE.        [rULE  50. 

of  March,  18-41.  If  she  had  become  a  wreck  and  had  been 
buffeted  to  and  fro  upon  the  ocean,  the  chances  would 
have  been  greatly  in  favor  of  her  being  seen  by  some  one 
of  the  many  sail  that  are  constantly  passing  between  the 
United  States  and  Europe.  The  fact  that  she  had  the 
recourse  of  both  sails  and  steam,  thus  doubling  her  chance 
of  making  some  port  in  case  of  disaster;  and  the  impene- 
trable cloud  that  has  always  hung  over  her  end,  lead  the 
mind  irresistibly  to  the  conclusion  that  she  must  have  gone 
to  the  bottom  before  she  had  been  six  weeks  out  of  New 
York ;  and  the  strong  probability  is  that  she  was  lost 
within  a  few  days  after  her  departure.  This  is  a  different 
question  from  the  one  presented,  when  it  is  to  be  deter- 
mined whether  a  sufficient  time  has  elapsed  to  compel  pay- 
ment of  an  insurance  on  a  missing  vessel.  Then  all  the 
chances  in  favor  of  safety  are  suffered  to  expire,  before  the 
final  and  last  step  is  taken  by  the  payment  of  the  loss. 
Here  the  fact  of  the  death  of  the  party  is  conceded,  and 
the  inquiry  is,  when  did  it  happen?  In  the  case  of  the 
insurance  after  Avaiting  for  a  year  from  the  sailing  of  the 
missing  ship,  and  then  paying  the  loss,  it  is  not  paid 
on  the  presumption  that  the  vessel  was  lost  only  on  the  day 
that  payment  was  made  ;  but  on  the  supposition  that  she 
must  within  the  longest  customary  period  allowed  for  such 
vessels  to  reach  their  port  of  destination.  It  is  a  general 
rule  that  if  a  ship  has  been  missing  and  no  intelligence 
received  of  her  within  a  reasonable  time  after  she  sailed, 
it  shall  be  presumed  that  she  foundered  at  sea.  The  under- 
writers are  permitted  to  wait  until  intelligence  of  the  miss- 
ing vessel  can  no  longer  be  reasonably  expected.  So  the 
Surrogate's  Court  will  delay  the  grant  of  administration 
upon  the  estate  of  one  who  sailed  in  such  a  vessel,  while 
hope  proclaims  a  chance  of  his  safety.  But  when  the 
expectation  of  tidings  of  ship  and  passenger  is  entirely 
exhausted,  and  the  underwriter  and  the  surrogate  acted 
upon  the  legal  presumption  of  the  loss  of  both,  that  pre- 
sumption relates  back  to  a  time  far  anterior  to  the  period 


RULE    50.]  THE    rUESUMPTIOX    OF    DKATII.  227 

when  such  action  takes  place.  It  is  a  presumption  founded 
upon  common  sense  and  experience,  and  leads  to  the  con- 
clusion that  the  loss  occurred  within  the  longest  usual  dura- 
tion of  a  voyage  from  the  port  of  departure  to  that  of  the 
ship's  destination;  because  a  loss  within  that  tinic  is  far 
more  probable  than  that  the  vessel  after  becoming  disabled 
should  have  drifted  about  for  any  considerable  period,  at 
the  mercy  of  the  waves,  without  encountering  some  other 
vessel  or  ultimately  reaching  the  land.^  *  *  ♦  ^pj^g 
authorities  fully  sustain  my  conviction  that  the  steamer 
President  must  be  deemed  to  have  been  lost  before  May, 
1841." 

In  case  Til.  it  was  said  **  The  presumption  of  his  death 
does  not  rest  upon  the  fact  that  he  has  not  been  heard  of 
for  seventeen  months,  but  upon  the  weightier  circumstance 
that  the  vessel  has  not  been  heard  of.  It  is  suggested  that 
she  may  have  been  lost  or  destroyed  by  pirates,  and  the 
defendant  have  survived;  that  considering  the  dangerous 
nature  of  the  navigation  in  which  he  was  engaged,  and  the 
character  of  the  islands  of  the  Pacific  where  he  may  have 
landed,  it  is  not  unreasonable  to  suppose  that  he  may  still 
be  living.  The  supposition  that  a  man  may  be  living  is  not 
unreasonable  w4iere  nothing  is  known  to  the  contrary,  until 
the  natural  limit 'of  life  has  been^^jjassed.  It  is  possible 
that  the  defendant  may  be  alive,  but  tlial  would  be  possi- 
ble fifty  years  hence.  The  question  is  not  whether  it  is 
possible  he  may  be  alive,  but  whether  the  circumstances  of 
this  case  do  not  warrant  that  strong  probability  of  his 
death  upon  which  a  court  of  Justice  should  act.  Forty 
j'cars  after  the  belief  had  become  universal  in  Europe  that 
the  vessels  of  La  Perouse  and  all  on  board  of  them  had 
perished,  discoveries  were  made  rendering  it  highly  probable 
that  he  and  some  of  his  companions  had  survived,  and  had 
lived  for  many  years  on  one   of  the  islands,  forming  part 

1  As  to  the  presumption  of  the  loss  of  a  vessel  under  such  circmnstanccs,  see 
Ilouseniaa  v.  Thornton,  Uolt  X.  P.  242;  Xewby  r.  Reed,  Park,  on  Ins.  8o;  Brown  r. 
Neilson,  1  Caines,  525. 


22S  PKESUMPTIVE   KVIDENCE.  [rULE    50. 

of  the  great  groups  through  which  the  vessel  of  the  defend- 
ant mu;>t  have  passed  in  the  successful  prosecution  of  her 
voyage.  The  suggestion  that  La  Perouse  might  still  be 
living,  would  have  availed  little  in  a  French  court  against 
the  chiim  of  the  heirs  to  inherit.  It  would  be  presumed 
that  he  was  dead,  for  courts  of  justice  do  not  allow  the  con- 
sideration of  possibilities  to  outweigh  a  case  of  strong  prob- 
ability, but  adopt  and  act  upon  those  presumptions  which 
seem  most  in  accordance  with  the  ordinary  and  usual  course 
of  events.  Presumption  founded  in  a  reasonable  probabil- 
ity must  prevail  against  mere  posibilities,  for  were  it  other- 
wise the  conclusion  could  never  be  arrived  at  that  a  man 
was  dead,  until  the  natural  limit  of  human  life  had  been 
reached.  Suggestions  quite  as  well  entitled  to  considera- 
tion as  those  now  presented  to  the  court  have  been  offered 
in  previous  cases  ;^  but  were  not  allowed  to  prevail 
against  the  presumption  which  was  deemed  the  proper  and 
reasonable  one  under  the  circumstances.  Seventeen  months 
liave  gone  Ly  since  the  defendant  departed  upon  a  voyage, 
the  ordinary  limit  of  which  is  four  months,  and  nothing 
having  been  since  heard  of  the  vessel  or  of  those  who  were 
on  her,  the  presumption  must  be  that  she  is  lost,  and  that 
the  defendant  and  those  on  board  have  perished.  A  greater 
length  of  time  would  strengthen  the  probability,  but  suffici- 
ent has  elapsed  to  warrant  the  court  in  adopting  and  acting 
upon  that  presumption." 

In  case  IV.  it  was  said:  "  If  a  tenant  for  life  remove 
beyond  sea  or  absent  himself  in  this  State  or  elsewhere,  for 
seven  j'ears  together,  he  is  presumed  to  be  dead.  That  is  a 
conclusion  founded  upon  mere  absence  and  not  being  heard 
of  for  that  time  without  reference  to  other  circumstances. 
Other  cases  are  left  to  depend  on  the  various  facts  which 
may  be  connected  with  them.  A  vessel  when  absent  double 
tlie  longest  time  of  a  voyage  may  be  presumed  to  be  lost; 
and  it  follows  as  a  consequence  that  it  w^ill  also  be  inferred 

1  SeeTwemlow  v.  Oswin/i  Cami).  85;  Green  v.  Brown,  2  Strange,  irj9 


RULE  50.]         THE  ruEsu.Mrriox  of  death. 


229 


that   all  perished   with  her,  if  none  of  the  passengers   or 
crew  are  afterwards  heard  of.     In  October  of  last  year  we 
were  shocked  at  the  news  of  the  loss  of  the  Arctic  and  most 
of  her  crew  and  passengers.     Still  hopes  were  reasonably 
entertained  that  some  individuals  might  have  been  picked  up 
by  vessels  going  to  Europe,  and  until  abundant  opportun- 
ity had  passed  to  hear  from  all  such  vessels  this  hope  was 
properly  indulged;  and  the  legal  inference  might  have  been 
until  that  time  was  passed  that  any  individual  not  known  to 
have  perished  was  still  alive.     But  when  that  last  anchor  cf 
hope  was  gone,  thenthe  conclusion  was  that  those  not  hear! 
from  had  perished — not  when  hope  was  last  given  up  — 
but  at  the  time  when  from  all  circumstances  it  was  most 
probable  that  they  had  perished,  and  would  carry  us  back  to 
the  time  when  the  ill-fated  vessel  and  passengers  and  crew 
sank  together.     Thus  in  earthly  as  in  heavenly  things,  things 
invisible  to  the  human  eye  may  be  clearly  seen,  being  under- 
stood by  the  things  that  are  known.  *  la  this  case  nearly 
the  same  time  has  elapsed  since  the  Albany  left  her  port 
destined  for  this  city,  and  that  is  the  last  that  has  been 
heard  of  her,  or  of  any  of  her  crew.     The  lapse  of  time 
makes  the  death  of  all  on  board  of  her  as  certain  as  any  thing 
not  seen  can  be,  and  throws  light  on  the  question,  when 
did  that  destruction  occur?     The  reasonable  answer  is,  at 
some  time  within  the  period  usually  assigned  as  the  longest 
for  such  a  voyage ;  and  it  might  be  from  the  circumstances 
that  it  should  be  considered  as  some  time  while  in  her  ordi- 
nary course  she  would  still  be  in  the  stormy  Gulf  of  Mex- 
ico.    Either  way  it  must  have  occurred  before  the  judgment 
in  this  case." 


I.  On  Noveraber  15,  1857,  G.  S.  sailed  from  Barcelona  to  Constanti- 
nople, the  average  duration  of  the  voyage  being  thirty  days.  The  vessel 
had  never  arrived  at  her  destination,  nor  had  anything  been  heard  of  her 
or  the  crew.  No  inquiries  had  however  been  made  at  Barcelona.  There 
is  no  presumption  that  on  November  15,  1858,  G.  S.  was  dead.^ 


1  Re  Smyth,  28  L.  J.  (P.  AM.)  1  (1S5S^ 


230  PRKSUMPTIVE  EVIDENCE.        [UULE  51. 

II.  On  October  20,  1858,  B.  sailed  in  command  of  a  vessel  from  Deme- 
rara  to  Loudon.  Nothing  was  afterward  heard  of  the  vessel  or  crew. 
No  inquiries  had  been  made  at  Demerara.  There  is  uo  presumption  in 
March,  1850,  that  B.  was  dcad.^ 

In  case  I.,  Creswell,  J.,  said:  *'  I  do  not  find  in  the  affi- 
davits an}^  statement  that  inquiries  have  been  made  at  Bar- 
celona or  elsewhere  about  the  crew.  The  affidavits  only 
state  that  neither  the  vessel,  G.  S.,  nor  any  of  the  crew 
have  been  heard  of.  I  should  undoubtedly  presume  that 
the  vessel  has  been  lost,  but  it  does  not  follow  that  the 
crew,  or  some  of  them,  may  not  have  been  saved.  The  case 
had  better  stand  over  until  you  have  written  to  the  agent 
of  the  ship  at  Barcelona  and  ascertained  whether  any  of 
the  crew  have  survived." 

In  case  II.,  the  same  judge  said  :  '*  I  think  probably  the 
vessel  is  lost,  but  it  does  not  appear  that  any  inquiries  have 
been  made  at  Demerara  as  to  whether  any  of  the  crew 
have  arrived  there  or  have  been  heard  of." 

RULE  51. — Tliat  at  some  time  within  tliat  period  he 
has  encountered  a  *'  specific  peril,"  which  incUides 
not  the  ordinary  dangers  of  travel  or  navigation'^ 
(A),  but  some  unusual  or  extraordinary  danger  (B). 

Ilhistrations. 


I.  A.  died  in  1797.  In  1791,  J.  sailed  from  New  York  to  Europe,  and 
was  not  subsequently  heard  from.  The  question  is  whether  J.  sur- 
vived A.  The  judge  instructs  the  jury  that  taking  into  consideration 
the  hazards  of  the  sea,  they  may  presume  that  J.  died  within  seven  years 
irom  the  time  he  sailed  from  New  York.    This  is  error. ^ 

II.  In  September,  1828,  S.  sailed  as  one  of  the  crew  of  a  schooner 
from  Portsmouth,  N.  II.,  to  the  South  seas  on  a  sealing  voyage.     One 


1  Re  Bishop,  1  Sw.  &  Tr.  303  (1859). 

2  Eagle's  Case,  3  Abb.  (Pr.)  220  (18.56).  "The  ordinary  perils  of  navigation  are 
undoubtedly  general  and  not  special  perils."  Lancaster  v.  Washington  Life  In.*. 
Co.,  ryi  Mo.  127  (1876) ;  Lewis  v.  Morley,  4  Dev.  &  IJ.  (L.)  323;  34  Am.  Dec.  379  (1839) ; 
Miller  v.  IJeates,  3  S.  &!'.  490;  8  Am.  Dec.  6.')8  (1817). 

«  Burr  V.  Sim,  4  AVheat.  150;  33  Am.  Dec.  50  (183S). 


KL'LE    Ol.]  TIIK    niESUMl'TION    OF    DEATH.  231 

Icttor  was  received  from  him  dated  April,  l'^i",t,  but  neither  8.  nor  the 
vessel  were  ever  heard  of  again.  There  is  no  presumptiou  that  S.  was 
not  alive  iu  September,  1831.1 

III.  C.  sailed  from  Boston  in  182(5  for  the  West  Indies,  since  which 
time  he  was  not  hcanl  of.  He  left  money  in  the  hands  of  M.,  who  iu 
April,  1828,  loaned  it  to  J.  J.  pleaded  tiiat  C.  was  dead  at  tiie  time  the 
loan  was  made.  Held,  that  this  could  not  be  prusumed  from  his  sailing 
on  the  voyage  and  being  unheard  of.* 

IV.  S.  left  the  Sandwich  Islands  in  a  bark  for  Manda,  May  2,  1855. 
The  Ijarii  and  those  on  board  wore  not  subsequently  seen  or  heard  of. 
There  was  no  presumption  in  September,  1S5G,  that  S.  was  dead.' 

In  case  I.  it  was  said:  "  The  circumstance  relied  on  is 
the  departure  of  the  individual  by  sea;  but  the  perils  of 
the  sea  are  general ,  not  specific ;  and  they  are  not  present 
but  contingent.  They  are  such  as  may  or  may  not  occur; 
but  to  accelerate  the  presumption  from  time,  or  more  prop- 
erly to  turn  it  from  an  artificial  into  a  natural  one,  it  is  nec- 
essary to  bring  the  person  within  the  range  of  a  particular 
and  an  immediate  danger — not  such  as  is  contingently  inci- 
dent, in  some  degree,  to  every  mode  of  conveyance.  A 
natural  presumption  arises  only  from  a  violent  probability, 
because  it  is  a  conclusion  drawn  by  experience  from  the 
usual  current  of  things ;  but  no  violent  probability  of  death 
arises  from  a  peril,  which  though  possible,  is  remote.  All 
the  examples  put  by  the  judge  himself  are  those  of  special 
perils  which  bear  directly  on  the  person  with  greater  or  less 
probability  of  its  destruction  in  proportion  to  their  urgency  ; 
and  such  was  the  nature  of  the  probability  in  Watson  v. 
King.  Now  there  is  no  mode  of  conveyance  which  has  not 
its  perils  ;  and  if  the  mere  departure  of  a  person  not  heard 
of  during  the  period  of  legal  presumption,  were  enough  to 
warrant  a  natural  presumption  of  his  death  within  a  more 
contracted  one,  the  legal  presumption,  stripped  of  its  defi- 
ciency to  dispose  of  the  uncertainty  it  was  introduced  to 
remedy,  would  be  deprived  of  the  greater  part  of  its  value. 


1  Smith  V.  KnowUon,  11  X.  H.  19-2  (1S40). 
=  Xewnuin  r.  Jenkins,  10  Pick.  515  (1*^0). 
3  AshOury  v.  Sauuders,  S  Gal.  62  (1S57). 


232  PRESUMFTIVE   EVIDKNCE.  [rULE    51. 

y\c  arc  of  opinion,  therefore,  that  though  the  exceptions  to 
other  parts  of  the  charge  are  not  legitimate  subjects  of 
revision  here,  the  direction  that  there  was  evidence  from 
which  the  jury  might  infer  the  death  to  have  been  at  a  time 
short  of  the  period  of  legal  presumption  was  erroneous." 
In  case  II.,  the  court  said,  that  they  were  not  aware  of 
any  authority  upon  which  the  dangers  of  a  sealing  voyage 
would  authorize  the  court  to  draw  a  conclusion  of  death,  at 
the  expiration  of  two  years,  as  to  a  party  who  had  embarked 
on  such  a  voyage. 

B. 

I.  J.  was  the  captain  of  a  schooner  named  The  Edmondson,  which 
sailed  September  i,  1854,  for  a  port  in  South  America.  Neither  vessel 
nor  crew  were  subsequently  heard  of.  A  violent  storm  prevailed  along 
the  coast  in  that  3-ear.  The  question  arises  whether  J.  was  alive  in  Sep- 
tember, 1857.    The  presumption  is  that  he  was  dead.^ 

II.  M.  left  New  York  for  Asia  in  1840.  In  1841  he  resided  in  a  town 
in  Asia  which  was  visited  by  an  epidemic.  He  was  not  heard  of  subse- 
quently to  1840.  His  death  may  be  presumed  to  have  occurred  prior 
to  1847.2 

III.  A  passenger  on  a  vessel,  in  a  weak  state  of  health,  disappeared 
from  the  vessel  while  in  the  middle  of  the  lake  on  a  cold  night.  The  pre- 
sumption is  that  he  had  either  by  accident  or  design  fallen  into  the  lake 
and  been  drowned. ^ 

In  case  I.  it  was  said:  "The  rule  that  the  presumption 
of  the  continuance  of  life  ceases  when  the  person  has  been 
absent  and  has  not  been  heard  of  for  a  period  of  seven 
years,  it  is  argued,  is  a  legal  presumption  and  can  not  aid 
the  defense,  because  the  period  limited  to  sustain  it  has  not 
expired.  If  the  presumption  of  death  arising  from  the 
lapse  of  time  be  a  legal  intendment  then  the  inference  is 
certain,  and  as  a  rule  of  law  would  be  obligatory  on  the 
jury;  but  such  a  presumption  is  rebuttable — p'e.§?«?2^9<'eo 
legis  tanlum,  and  may  be  disproved,  either  by  direct  or  cir- 


1  Gibhes  v.  Vincent,  11  Rich.  (L.)  323  (1858) ;  Learned  v.  Corley,  43  Miss.  709  (1870) ; 
and  see  lie  Xorris,  1  Sw.  &  Tr.  6  (1858) ;  Watson  v.  King,  1  Stark.  121  (1815). 

2  See  Eagle's  Case,  %  Abb.  (Pr.)  218  (183G). 

3  Lancaster  v.  Washington  Life  lus.  Co.,  62  Mo.  127  (1876). 


RULE    52.]  TIIL:    PRESUMmON    OF    DEATH.  233 

cum.stantiiil  evidence,  the  effect  of  which  the  jury  and  not 
court  must  determine.  It  is  not,  however,  from  the  pre- 
sumption arising  alone  from  the  length  of  time  since  John- 
son has  been  heard  of  that  his  death  is  inferred,  ])ut  from 
the  j)revalence  of  a  violent  storm  on  the  track  of  his  vessel 
about  the  time  he  sailed,  and  that  neither  The  Edraondson, 
he  nor  his  crew  have  since  been  heard  of.  The  conclusion 
of  his  death  is  inferred  from  a  cause  adequate  to  produce 
it,  coupled  with  the  fact  that  we  have  no  tidings  of  him 
since." 

RULE  52.  —  That  his  habits,  character,  domestic  rela- 
tions (A)  or  necessities  (B)  would  have  made  it  cer- 
tain that  if  alive  within  that  period  he  would  have 
returned  to  or  communicated  with  his  residence,  home 
or  domicil. 

Illustrations. 

A. 

I.  A.  left  home  for  a  city  in  an  adjoininj;  State  on  business,  arrived 
tliere  in  safety,  ami  Avaa  seen  by  an  acquaintance  on  the  street  about 
tliree  p.  M.  of  the  day  lie  arrived.  He  was  never  subsequently  seen  or 
heard  of.  It  is  shown  that  his  character,  habits,  and  domestic  relations 
were  unblemished  and  undisturbed.  The  presumption  arises  that  his 
absence  is  caused  by  death. ^ 

In  case  I.  it  was  said:  "Any  facts  or  circumstances 
relating  to  the  character,  habits,  affections,  attachments, 
prosperity,  and  objects  in  life  which  usually  control  the  con- 
duct of  men  and  are  the  motives  of  their  actions,  are  com- 
petent evidence  from  which  may  bo  inferred  the  death  of 
one  absent  or  unheard  from,  whatever  has  been  the  dura- 
tion of  such  absence.  A  rule  excluding  such  evidence  would 
ignore  the  motives  which  prompt  human  actions  and  forbid 


1  Tisdale  v.  Connecticut  Mntu.al  Ins.  Co.,  26  la.  170  (1S68) ;  ^8  Id.  12  (1870) ;  Garden 
r.  Garden,  2  Houst.  (Del.)  574  (18G3).  In  1S.")6  M.  disajipeared  from  liome.  In  an 
action  brought  in  1SG4,  it  was  proved  that  Hr.  had  not  since  been  heard  of.  It  was 
al:^o  proved  that  M.  before  Ills  disappearance  had  declared  his  intention  of  coniniit- 
tingr  snicide.  Ileld,  tliat  the  presumption  was  proper  that  his  death  occurred  about 
the  time  of  his  disappearance. 


23-4  PKESUMPTIAE    EVIDENCE.  [llULE    52. 

inquiry  into  them  in  order  to  explain  the  conduct  of  men. 
The  true  doctrine  may  be  readily  illustrated,  thus :  An 
honored  and  upright  citizen  who  through  a  long  life  has 
enjoyed  the  fullest  confidence  of  all  who  knew  him  —  pros- 
perous in  business  and  successful  in  the  accumulation  of 
wealth;  rich  in  the  affection  of  wife  and  children  and 
attached  to  their  society;  contented  in  the  enjoyment  of  his 
possessions,  fond  of  the  associations  of  his  friends,  and 
havin«-  that  love  of  country  which  all  good  men  possess  — 
with  no  habits  or  affections  contrary  to  these  traits  of  char- 
acter—  journeys  from  his  home  to  a  distant  city,  and  is 
never  afterward  heard  of.  Must  seven  years  pass,  or  must 
it  be  shown  that  he  was  last  seen  or  heard  of  in  peril  before 
his  death  can  be  presumed?  No  greater  wrong  could  be 
done  to  the  character  of  the  man  than  to  account  for  his 
absence,  even  after  the  lapse  of  a  few  short  months,  upon 
the  o-round  of  a  wanton  abandonment  of  family  and  friends. 
He  could  have  lived  a  good  and  useful  life  to  but  little  pur- 
pose if  those  who  knew  him  could  even  entertain  such  a 
suspicion.  The  reasons  that  the  evidence  above  mentioned 
raise  a  presumption  of  death  are  obvious  ;  absence  from 
any  other  cause,  being  without  motive,  and  inconsistent 
with  the  very  nature  of  the  person  is  improbable.  It  is 
suo-o-ested  that  such  absence  may  be  on  account  of  insanity. 
That  may  be  possible,  but  as  death  under  such  circum- 
stances is  more  probable  than  insanity  in  the  absence  of 
evidence  thereof,  the  law  raises  the  presumption  of  death. 
Evidence  which  would  point  toward  insanity  as  the  cause  of 
such  absence  would,  of  course,  be  proper  for  the  considera- 
tion of  the  jury,  from  which  its  probability  might  be  deter- 
mined. The  competency  of  evidence  of  the  character  above 
indicated,  from  which  the  fact  of  the  death  of  an  absent 
person  may  be  found  within  the  period  of  seven  years  is 
well  sustained  by  authority." 

B. 

I.  B.,  a  man  of  drunken  habits,  was  entitled  to  dividends  on  stock  pay- 
able iu  April  and  October.    These  were  his  chief  maiutenauce,  which  he 


RULE    52.]  THE    rHE.sUMPTIOX    OF    DEATH.  235 

generally  squandered  la  dissipation  as  soon  as  received,  lie  appli.'d  for 
and  received  his  dividends  in  April,  18(J0,  and  was  last  seen  in  August  of 
the  same  year,  very  sick.  He  did  not  apply  in  October,  and  was  nut  sub- 
secjucnlly  seen  or  beard  of.  The  question  was,  in  ISOO,  whether  he  had 
died  before  November,  18G0.    The  presumption  is  that  he  had.^ 

II.  In  March  25,  18G6,  S.  left  her  home  and  was  never  heard  of  again. 
She  depended  on  an  income  payable  in  quarterly  installments.  She  did 
not  appear  to  claim  the  amount  due  in  June,  ISGG.  In  a  proceeding  in 
1875  the  presumption  is  that  she  was  dead  after  June,  18CG.'^ 

III.  In  May,  1872,  J.,  who  was  then  sixty-six  years  old,  and  who  was 
dependent  for  support  upon  the  income  derived  under  a  will,  left  his 
house  and  was  never  subsequently  heard  of.  A  few  days  previously  he 
had  called  upon  the  executor  for  the  money,  receiving  half  a  year's 
income.  He  was  suffering  at  the  time  from  an  incurable  disease.  The 
presumption  is  that  he  died  during  the  fall  of  1872.' 

In  casG  I.  it  was  said:  "I  quite  adliere  to  the  general 
rule  laid  down  in  Doe  v.  JSTepean  and  many  other  cases, 
that  where  a  person  has  not  been  heard  of  for  seven  years 
the  onus  prohandi  of  showing  that  he  died  at  any  particular 
period  within  the  seven  years  lies  upon  the  person  settino- 
up  such  earlier  death.  In  the  case  of  Re  Henderson's 
2  rusts, ^  which  has  been  referred  to,  the  master  of  the  rolls 
came  to  the  conchusion  that  the  fact  that  the  person  pre- 
sumed to  be  dead  had  not  applied  for  a  half-yearly  payment 
of  an  annuity  for  which  he  had  hitherto  regularly  applied, 
and  on  which  he  chiefly  depended  for  his  maintenance,  was 
sufiicient  to  lead  to  the  presumption  that  he  died  before  such 
payment  became  due  ;  and  that  seems  to  me  to  be  a  sound 
conclusion.  Applying  the  same  principle  to  the  present 
case,  B,  was  of  drunken  habits,  and  when  last  seen  was  in 
so  emaciated  a  state  that  his  death  might  have  been  expected 
at  anytime.  IIow  can  his  never  applying  for  his  October 
dividends  be  accounted  for  except  on  the  presumption  that 
he  was  dead?  With  regard  to  the  suggestion  that  he  may 
have  gone  to  America,  it  appears  that  he  had  no  means,  and 

Sheldon  v.  Ferris,  45  Barb.  128  (1865). 

2  Kc  lieiu-^uey,  L.  K.  7  Eq.  4'J8  (ISG'J). 

3  llifkmaa  v.  Upsall.i  Cli.  Div.  U7  (1ST6) ;  llickmau  r.  Upsall,  2  W.  019  (ISTG) ; 
Hickiuan  v.  Upsall,  L.  11.  20  Eq.  139  (1875), 

*  Ke  Ackermun,  3  liedf,521  (1877). 


236  PRESUMPTIVE    EVIDENCE.  [kULE    52. 

it  is  not  probable  that  he  would  have  done  so  without  com- 
municating with  his  relatives,  with  whom,  notwithstanding 
his  habits,  he  was  on  affectionate  terms.  I  therefore  come 
to  the  conclusion  on  the  facts  of  this  case  that  B.,  having 
made  no  application  for  the  October  dividend,  must  be  pre- 
sumed to  have  been  then  dead." 

In  case  II.  James,  L.  J.,  said:  "The  vice-chancellor 
was  of  opinion  that  S.  must  now  be  presumed  to  have  died 
soon  after  June,  1866,  but  that  it  would  have  been  impos- 
sible to  make  such  a  presumption  till  after  the  expiration 
of  seven  years  from  the  time  when  she  was  last  heard  of; 
that  is  to  say,  that  the  circumstance  of  her  going  away  and 
not  appearing  to  receive  her  income  in  June,  1866,  was  not 
in  itself  sufficient  to  justify  the  petitioners  in  acting  on  the 
presumption  of  her  death  so  as  to  enable  them  at  that  time 
to  apply  to  be  let  into  possession  of  the  property ;  but  now 
taking  the  circumstances  under  which  she  disappeared 
together  with  the  presumption  which  has  arisen  at  the  end 
of  seven  years,  he  has  come  to  the  conclusion  from  these 
circumstances  not  only  that  she  is  dead,  but  that  she  died 
soon  after  June,  1866.  I  think  he  was  right  in  that  way  of 
dealing  with  that  part  of  the  question.  And  Brett,  J., 
added  :  "  Our  decision  depends  upon  the  question  when  S. 
died.  The  fact  of  her  not  appearing  to  receive  her  income 
was  not  sufficient  evidence  of  her  death;  it  was  not  so  after 
the  first  quarter  day  ;  it  was  not  so  after  the  second  quarter 
day.  In  truth  there  was  no  presumption  until  she  had  dis- 
appeared for  seven  years ;  but  after  seven  years  having  got 
the  fact  that  she  was  dead,  you  have  a  right  to  look  back 
and  inquire  into  all  the  circumstances  and  ascertain  when 
she  died.  Suppose  a  person  intending  to  return  home  at 
ten  o'clock  at  night  does  not  appear,  there  is  no  presump- 
tion that  he  is  dead.  But  if,  after  a  week  he  is  found  with 
his  skull  broken  in  a  wood,  you  can  then  conclude  that  he 
was  killed  before  ten  o'clock  on  the  night  on  which  he  dis- 
appeared. So  in  the  present  case  I  think  the  vice-chancel- 
lor was  right  in  concluding  that  this  lady  died  at  the  time 
at  which  he  says  she  died." 


KULE    53.]  THE   PRESUMPTION   OF   DEATH.  237 

In  case  III.  it  was  said  that  his  entire  dependence  upon 
the  income,  his  reguhir  and  frequent  calls  for  the  same 
before  his  departure,  and  liis  faihire  to  call  thereafter,  all 
combined  to  justify  the  presunijjtion. 

IIULE  53. — But  the  presumption  of  death  at  the 
expiration  of  seven  years  from  heing  last  heard  of, 
docs  not  arise  where  it  is  improhahle  that  the  ahscntee, 
even  if  alive,  would  or  could  have  hcen  heard  of  at, 
or  would  or  could  have  commiuiicated  with,  his  resi- 
dence, home  or  domicil  (A),  or  where  in  other  judicial 
liroceedings  the  ahsentee  is  recorded  as  havinjj  hcen 
alive  suhsequeutlj'  to  the  end  of  the  seven  years  (li)' 

Illustrations. 

A. 

I.  Ill  1829  L.  left  her  family  in  England  and  went  to  Paris  ■where  she 
took  a  situation  as  governess.  She  continued  to  correspond  with  her 
relatives.  In  1835  she  wrote  to  her  sister  from  Paris  saying  that  she  was 
about  to  accept  another  situation,  and  stating  that  she  had  become  a 
Catholic.  On  receipt  of  this  letter  her  sister  replied  in  a  letter  or  remon- 
strance reproaching  her  for  her  abandonment  of  the  Protestant  religion. 
Ko  reply  Avas  received  to  this  letter,  and  she  was  not  subsequently  heard 
of.     There  is  no  presumption  that  L.  died  in  1842.1 

II.  A  girl  of  sixteen  leaves  her  father's  house;  later  (August  1,  1814) 
she  is  in  a  seaport  town,  intending  to  go  abroad.  She  is  not  subse- 
quently heard  of.    There  is  no  presumption  that  in  1821  she  is  dead.* 

1  Bowen  v.  Henderson,  2  Sim.  &  G.  360  (lS54h 
In  McMahon  v.  McElroy,  Ir.  Kep.  5  Eq.  1  (1S69),  an  Irish  case,  it  was  said: 
"Tlie  oircumstances  of  the  present  case  are  not  sucli  as  to  render  it  safe  to  make 
that  presumption  at  present.  Ilujrh  Morgan  left  Ireland  for  America  some  lime 
before  llie  year  1S59;  resided  there  for  some  years;  married  there;  came  back  to 
Ireland  with  his  wife  in  I85;i  for  a  temporary  imrpose  only ;  he  sold  all  his  prop- 
erly in  Ireland,  and  after  a  few  months,  returned  to  America  whither  liis  wife  and 
son  followed  him.  It  is  contended,  hnwevcr,  that  because  ho  has  not  since  been 
heard  of  by  his  sister,  the  only  member  of  his  family  who  remains  in  Ireland,  I  am 
therefore,  to  presume  that  he  is  dead.  But  suppose  that  an  alien  comes  into  this 
country  and  stays  for  a  few  months,  or  that  a  person  who  is  not  an  alien  but  has  his 
residence  abroad,  comes  here  and  stays  for  a  little  time,  and  then  leaves,  having — 
toputnn  extreme  case  — no  relatives  here,  and  is  not  heard  of  for  seven  years,  is  the 
presumption,  therefore,  to  be  made  of  his  death?  I  do  not  think  the  rule  would 
apply  to  such  cases." 

«  Watson  V.  England, USim.  2S  (1811). 


238  PREsmiPTivE  EVIDENCE.  [rule  53. 

III.  A.  was  transported  from  England  to  New  South  Wales  in  1838  for 
seven  years  for  a  crime.  He  last  wrote  to  his  family  on  board  ship  in 
that  year.  The  records  showed  that  he  served  his  sentence.  There  is 
no  presumption  that  he  was  dead  in  the  year  1850.^ 

IV.  S.  died  in  August  1858.  W.,  his  father,  left  England  for  Australia 
in  1S49,  from  which  country  he  wrote  to  his  wife  until  1854,  when  he 
ceased  to  write.  In  his  last  letter  he  said:  "  I  have  made  up  my  mind 
should  I  reach  England  in  safety,  not  to  know,  see  or  have  any  communi- 
cation or  connection  whatever  with  any  one  whom  I  formerly  knew." 
TV.  was  never  subsequeutly  heard  of.  There  is  no  presumption  that  he 
died  before  S.^ 

V.  A.  sailor  leaves  his  ship  in  a  foreign  country  in  1850,  and  is  not 
afterward  heard  of.  It  is  proved  that  his  intention  was  to  desert. 
There  is  no  presumption  that  he  died  in  1857.' 

In  case  I.  it  was  said  tiiat  the  principle  on  which  the 
presumption  that  an  absent  person  not  heard  from  for 
seven  years  is  dead  is  based  is  that  if  he  were  living  he 
would  probably  have  communicated  with  some  of  his  friends 
and  relatives.  This  is  a  conclusion  which  courts  draw  from 
the  probabilities  of  the  case.  "  It  is  quite  clear,  therefore, 
that  when  no  such  probability  exists  the  presumption  can 
not  arise.  In  this  case  all  the  circumstances  tend  to  show 
that  after  what  had  taken  place  between  L,  and  her  friends 
it  was  extremely  improbable  she  would  have  entered  into 
further  communication  with  them.  She  had  abandoned  her 
religion,  and  her  friends  wrote  to  her  a  letter  of  remon- 
strance and  reproach  for  so  doing.  The  reproaches  were 
not  calculated  to  encourage  further  communications.  I 
think  this  circumstance,  taken  in  connection  with  the  rather 
eccentric  course  of  life  which  it  appears  from  her  letters 
she  pursued,  render  it  improbable  that  she  would  have  fur- 
ther communication  Avith  her  fi'iends.  If  I  am  right  in  this 
view,  it  follows  that  the  i)resumption  of  her  death  does  not 
arise  from  the  absence  of  information  or  of  communication 
when  that  absence  is  natural,  even  if  the  lady  were  still 
alive." 


1  Milcham's  Trust,  lo  Beav.  ."jOT  (1852). 

-  lie  Smith,  21  L.  J.  (P.  &  M.)  182  (1SG2). 

3    Lakin  v.  Lakin,  34  Beav.  443  (18C5) ;  sec  Dowley  v.  Winficld,  14  Sim.  277  (1844). 


RULE    53,]  THE    PRESUMPTION   OF   DEATH.  239 

In  case  II.  Shadwell,  V.  C,  said:  "Hero  a  girl  about 
sixteen  or  seventeen  years  of  age,  whose  father  was  farmer, 
chose,  for  some  reason  which  does  not  appear,  to  leave  her 
father's  house,  and  to  go  no  one  knows  whither.  But  it 
seems  that  in  August,  1814,  she  was  at  Portsmouth,  and 
that  she  then  intended  to  go  al)road.  Therefore  it  is  but 
reasonable  to  presume  that  all  along  she  iiad  been  conceal- 
ing herself,  and  that  she  never  intended  to  return  home. 
The  mere  fact  of  her  not  having  been  heard  of  since  1814 
affords  no  inference  of  her  death;  for  the  circumstances  of 
the  case  make  it  very  probable  that  she  "svould  never  be 
heard  of  again  by  her  relations.  How  can  I  presume  that 
she  died  in  1821  from  a  fact  which  is  quite  consistent  with 
her  being  alive  at  that  time?  " 

In  case  IV.  it  was  said ;  "  The  evidence  is  not  sufficient  to 
warrant  the  presumption  that  W.  died  before  his  son. 
Some  expressions  used  by  him  in  the  last  letter  to  his  wife 
would  lead  to  the  conclusion  that  he  mio;ht  have  reasons  for 
not  airain  communicatiu":  with  her." 


B. 

"■  I.  F.  was  the  daughter  of  G.,  who  died  in  1800.  In  1788  F.  removed 
from  the  State,  and  was  not  subsequently  heard  of.  In  1825  an  adminis- 
tration account  was  prosecuted  and  confirmed  in  which  a  claim  was  made 
and  allowed  for  the  "  use  of  F.,  a  daughter  of  G."  This  is  sulhcient  to 
rebut  the  presumotion  that  G.  survived  F.^ 

II.  In  case  I.  a  petition  filed  in  1805  by  a  son  of  G.  stated  that  G.  had 
left  surviving  him  twelve  children  naming  F.  among  them.  The  return 
of  the  sheriff  stated  that  "the  parties  were  severally  named."  This  is 
also  sufficient  to  rebut  the  presumption  thatG.  survived  F.^ 

III.  The  grant  of  letters  of  administration  raises  a  presumption  of  the 
death  of  the  party .^ 


1  Kecch  r.  Rinehardt,  10  Pa.  St.  20  (1S49). 

'  Lancaster  r.  Wasliington,  Life  Ins.  Co.,  0.2  Mo.  121  (l!*TG) ;  Jenkins  r.  Pcckin- 
pi\ugh,40  Ind.  133  (1872);  French  r.  Frazicr,  7  J.J.  Marsh.  431  (1S32) ;  Peterkm  r. 
Inloes,4  Md.  175  (1853). 


CHAPTEE    XI. 

THE  PRESUMPTION  OF  SURYn^ORSHIP. 

RUIjE  54.  — There  is  no  presumption  as  to  the  order  in 
which  two  or  more  persons  died,  who  are  shown  to 
have  perished  in  the  same  accident,  shipwreck  or  bat- 
tle. The  law  regards  them  as  having  died  at  the 
same  instant. 

The  common  law  (unlike  the  civil  law  in  this  respect 
which  answers  the  questions  arising  out  of  the  death  of 
several  persons  in  a  common  calamity  by  recourse  to  a 
number  of  fixed  presumptions  based  on  the  age,  sex,  and 
strength  of  the  parties),  does  not  attempt  to  ascertain,  in 
the  absence  of  any  evidence  on  which  to  go,  the  survivor 
of  a  common  catastrophe.  Strictly  it  may  be  said,  that  the 
common  law  presumes  neither  that  one  survived  nor  that  all 
perished  at  the  same  moment.  But  by  leaving  the  matter 
as  one  unascertainable,  "the  practical  consequence,"  as 
has  been  said,  "is  nearly  the  same  as  if  the  law  presumed 
all  to  have  perished  at  the  same  moment.  It  is  in  fact 
exactly  the  same.  Where  two  persons  (whether  of  the 
same  or  different  ages,  sexes  or  physical  conditions)  perish 
in  an  accident,  shipwreck,  or  battle,  and  there  is  no  evidence 
to  show  which  one  of  the  several  survived,  the  law  will  not 
raise  any  presumption  from  the  fact  that  one  was  younger 
cr  stronger,  or  of  the  more  hardy  sex,  that  he  survived 
an  older  or  a  weaker  or  a  less  hardy  victim.  The  party 
alleging  that  one  survived  the  other  must  prove  it ; 
the  onus  is  on  him  who  claims  a  right  or  title  upon  the 

(240) 


RULE    Si.]      THE   PRESOIPTIOX    OF   SURVIVORSHIP.  241 

theory   of    the    survivorship   of   one   to   prove    that    fact 
affirmatively."^ 

Illustrations. 

I.  II.  and  his  wife,  while  in  a  railroad  car  together,  are  precipitated 
through  a  bridge  into  a  river.  They  are  afterwards  found  dcaii,  and  no 
proof  of  one  surviving  the  other  is  presented.  Neither  transmits  any 
rights  to  the  other,  and  the  heirs  of  H.  must  take.' 

II.  A  father  and  two  children  were  lost  in  a  shipwreck,  there  being  no 
evidence  of  survivorship.  The  next  of  kin  of  the  children  claimed.  The 
burden  of  showing  that  they  survived  their  father  being  upon  them,  they 
can  not  recover.' 

III.  A  father  seventy-three  years  old,  and  his  daughter  thirty-three 
years  old,  being  on  board  a  steamship  which  was  lost  at  sea,  perished  in 
the  same  calamity,  and  nothing  was  shown  which  tended  to  prove  that 
one  died  before  the  other.  The  heirs  of  the  daughter  can  take  nothing 
as  coming  to  her  from  the  father.* 

IV.  A.  made  a  will,  leaving  some  legacies  and  appointing  his  wife 
residuary  legatee;  she  died,  leaving  several  children.  A.  married  again, 
and  had  no  child.  A.,  with  his  wife  and  all  his  children,  afterward  were 
lost  at  sea.    The  will  is  not  revoked.* 

v.  T.  and  his  wife  perished  at  sea  in  the  same  shipwreck,  and  there 
was  no  evidence  who  survived.  The  question  arose  whether  the  relatives 
of  the  husband  or  of  the  wife  were  entitled  to  the  residue  of  his  estate- 
Eeld,  that  the  former  were.^ 


1  Mason  v.  Mason,  1  Merivale,  307  (1816) ;  Wollaaton  v.  Berkeley,  2  Ch.  Div.  213 
(1876) ;  Re  Heu88,2  Salk.533;  Re  Wheeler,  37  L.  J.  (P.  &M.)  40;  Robinson  v.  Sallier,2 
Woods  C.  C.  187  (1875).  Contra  Calvin  r.  Procurator-General,  1  Hagg.  Ecc.  92  (1827) ; 
and  sec  Durrant  v.  Friend.  5  D,  G.  &  Sn.  345  (1852) ;  Scutlon  v.  Patulli),  L.  li.  19  Eq. 
375  (1875) ;  R.  v.  Hay,  1  W.  Black.  646.  This  was  the  celebrated  case  of  General  Stan- 
wix,  who,  with  his  wife  and  daughter  by  a  former  marriage,  perished  at  sea  on  a 
voyage  from  Dublin  to  England.  Mr.  Fcarne  composed  two  ingenious  arguments, 
one  in  favor  of  each  of  the  claimants,  which  are  printed  in  his  posthumous  works. 
In  Selleck  v.  Booth,  1  You.  &  Cull.  C.  C.  117,  Vice-Chancellor  Knight  Bruce  held  that 
a  presumption  of  priority  of  death  might  arise  from  the  comparative  age,  strength 
and  health  of  the  parties.  In  this  case  two  brothers  perished  in  a  6hii)WTeck;  one 
was  the  master,  the  other  the  second  mate  of  the  vessel;  and  he  ruled  that  the 
former  (the  elder)  would  be  presumed  to  have  survived  the  latter,  as  being  the  most 
experienced  sailor.  Mr.  Taylor  (Ev.,  vol.  1,  sec.  160)  says  of  this  case  that  it  "can 
not  be  relied  on  as  authority,  since  it  Is  opposed  to  a  long  current  of  decisions." 

*  Ke  Hall,  12  Ch.  L.  N.  12,  68  (1879). 

»  Newell  r.  Nichols,  12  Hun,  604  (1878). 

*  Coyev.  L,each,  8Metc.371  (1844). 

»  Wright  V.  Netherwood,  2  Salk.  592  (1743). 

6  Taylor  V.  Deplock,  1  Phill.  261  (1815) ;  Re  Selwyn,  3  Hagg.  Ere.  748  (1831).  In 
this  case  the  court  said:  "  Instances  have  occurred  where,  under  similar  circum- 
stances, the  question  has  been,  which  of  the  two  survived?  But  in  the  absence  of 
clear  evidence,  it  has  generally  been  taken  that  both  died  in  the  same  moment.'' 
Re  Murray,  1  Curt.  596  (1837). 
10 


24:2  PRESU^imvE  evidence.  [rule  54. 

YI.  A  husband  and  wife  were  lost  with  all  on  board  of  a  packet  in  the 
English  channel.  The  next  of  kin  of  the  husband  claims  certain  pro- 
perty as  coming  to  him  as  the  heir  of  his  wife.  There  being  no  evidence 
that  the  husband  survived  the  wife,  the  application  is  refused.^ 

VTI.  A  husband  and  wife  were  swept  by  the  same  wave  into  the  sea 
and  not  afterwards  seen.  The  court  can  not  assume  that  either  survived 
'the  other.* 

VIII.  "W.  and  his  wife  were  killed  at  the  massacre  at  Cawnpore  on  or 
about  the  27th  of  June,  1857.  There  was  no  evidence  which  perished 
first.    There  is  no  presumption  that  either  survived  the  other.' 

IX.  Two  persons,  husband  and  wife,  made  separate  wills.  In  the 
husband's  will  the  property  was  given  to  the  wife,  "  and  in  case  my  wife 
shall  die  in  my  lifetime,  then  to  W.  W.  in  trust  for  the  children  on  their 
coming  of  age."  In  the  wife's  will  (made  under  a  power  given  her  by 
her  deceased  father,  in  default  of  the  exercise  of  which' the  property  was 
to  go  to  relatives  specifically  named)  property  was  given  to  her  husband, 
and  "  in  case  my  husband  should  die  in  my  lifetime,"  then  to  W.  W.  abso- 
lutely. The  husband  and  wife  and  two  children  perished  at  sea,  being  all 
swept  off  the  deck  by  one  wave,  and  all  disappearing  together.  There  is 
no  presumption  that  the  husband  had  survived  the  wife  or  the  wife  the 
husband ;  it  is  necessary  that  W.  \V.  should  show  affirmatively  that  one 
or  the  other  had  survived,  and  in  the  absence  of  such  proof  the 
property  goes  to  the  relatives  specifically  named  in  the  will  of  the  wife's 
father,  as  there  has  been  no  will  by  the  husband  nor  any  appointment  by 
the  wife.* 

X.  A  mistress  made  a  will,  in  which  she  left  her  housekeeper  the 
whole  of  her  property.  Mistress  and  housekeeper  were  murdered  at 
the  same  time,  there  being  no  evidence  which  one  died  first.  The  claim- 
ants under  the  servant  could  not  succeed.* 

XI.  "W.,  her  husband  and  daughter  sailed  from  New  York  to  Europe  in 
March,  1841,  in  tlie  steamship  President.  Before  this  she  had  procured  a 
policy  of  insurance  on  her  life  for  the  benefit  of  her  daughter.  Neither 
the  President  nor  any  of  its  passengers  were  ever  subsequently  seen  or 
heard  of.  There  is  no  presumption  that  the  daughter  survived  her 
mother.* 

XII.  A  mother  and  an  infant  son  are  lost  in  a  shipwreck.  The  pre- 
sumption is  that  they  died  at  the  same  time.' 


1  Satterthwaite  v.  Powell,  1  Curt.  705  (1838). 

»  Underwood  v.  Wing,  4  DeG.  M.  &  G.  657  (1855). 

a  Re  Wainwright,  1  Sw.  &  Tr.  257  (1858) ;  Re  Ewarl,  Id.  253  (1859). 

*  Wing  r.Ungrave,  611.  L.  Cas.  183  (1860). 

6  See  Doe  v.  Nepean,  5  B.  &  C.  92  (1833). 

«  Moehring  V.  Mitchell,  1  Barb.  Ch.  205  (1846). 

1  Stinde  v.  Goodncli,  3  Redf.  87  (1877) ;  Re  Ridgway,  4  Id.  226  (ISSO). 


KULE   54.]     THE   PRESUMrXION   OF   SURVIVOnSIIIP.  243 

XIII.  A.  and  B.,  husband  and  wife,  are  killed  in  the  same  casualty,  o, 
f/.,  the  wrecking  of  a  railroad  train  by  the  giving  away  of  a  bridge.  The 
presumption  is  that  they  died  at  the  same  time.^ 

XIV.  A  father  with  his  two  children  perished  in  a  shipwreck.  There 
is  no  presumption  either  that  a  particular  one  of  the  three  survived  the 
other,  or  that  they  did  not  all  perish  at  the  same  instant.* 

In  case  III.  it  was  said:  "  The  case  stands  thus  :  S\iva- 
nus  Keith  and  hid  daughter,  Mrs.  Coye,  perished  in  the 
same  disaster.  No  fact  is  shown  givin<j  the  least  indication 
that  either  party,  from  the  nature  of  the  accident  or  the 
position  of  the  parties,  had  any  advantage  over  the  other 
for  protecting  life.  Nothing  is  shown  of  their  particular 
capabilities  arising  from  personal  strength  or  vigor.  Noth- 
ing indeed  is  put  into  the  case  to  control  it  in  favor  of 
either  besides  age  and  sex  ;  and  these  are  not  decisive  tests 
in  the  present  case.  In  truth,  there  is  nothing  to  show  that 
either  the  father  or  the  dauHitcr  survived  the  other.  The 
evidence  *  *  *  fails  to  show  that  the  estate  of  Sylva- 
nus  Keith  ever  vested  in  Caroline  E.  Coye,  his  daughter.  To 
effect  this  it  was  necessary  that  she  should  have  survived  her 
father.  We  do  not  feel  authorized  to  say  that  this  fact  is  satis- 
factorily established.  For  aught  that  appears  in  the  present 
aspect  of  the  case  they  may  both  have  perished  together. 
This  being  so,  and  no  arbitrary  prestrtiiption  being  author- 
ized bylaw  in  such  cases  arising  from  age  or  sex,  the  conse- 
quence is  that  those  who  seek  to  enforce  their  rights  as  heirs 
at  law  of  Caroline  E.  Coye  must  fail  in  establishing  their 
riijht  to  a  distributive  share  in  the  estate  of  Svlvanus  Keith.' 

*'  "With  respect  to  the  priority,"  said  Sir  William  "Wynne 
in  case  IV.,  "  it  has  always  appeared  to  me  more  fair  and 
reasonable  in  these  unhappy  cases  to  consider  all  the  parties 
as  dj'ing  at  the  same  instant  of  time  than  to  resort  to  any  fan- 
ciful supposition  of  survivorship  on  account  of  the  degree  of 
robustness.     *     *     *     Therefore,  taking  into  consideration 


1  Kansas  Pac.  U.  Co.  r.  Miller,  2  Cal.  443  (1S74) ;  Russell  v.  Hallett,  23  Kas.  276 
(ISSO). 

2  Xewell  f.  Nichols,  75  N.  Y.  78  (1S7S). 


2-44  PRESUMPTIVE  EVIDENCE.        [rULE  54. 

that  there  was  no  wife  or  child  at  his  death,  I  pronounce  for 
the  will." 

In  case  V.  Sir  John  NichoU  said:  *'  There  is  no  evidence 
direct  as  to  this  point ;  some  inferences  have  been  deduced. 
It  is  stated  that  the  two  bodies  were  found  together.  This 
tends  to  show  that  they  were  in  the  same  situation  at  the 
time  of  death.  Upon  the  whole,  I  am  not  satisfied  that 
proof  is  adduced  that  the  wife  survived.  Taking  it  to  be 
that  both  died  together,  the  administration  is  due  to  the 
representatives  of  the  husband.  I  assume  that  both  per- 
ished in  the  same  moment,  and  therefore  I  grant  the  admin- 
istration to  the  representatives  of  the  husband.  I  am  not 
deciding  that  the  husband  survived  the  wife." 

In  case  \T[.  the  judge  said:  "The  principle  has  been 
frequently  acted  upon  that  where  a  party  dies  possessed  of 
property  that  the  right  to  that  property  passes  to  his  next 
of  kin,  unless  it  be  shown  to  have  passed  to  another  by  sur- 
vivorship. Here  the  next  of  kin  of  the  husband  claims  the 
property  which  was  vested  in  his  wife;  that  claim  must  be 
made  out ;  it  must  be  shown  that  the  husband  survived. 
The  property  remains  where  it  is  found  to  be  vested  unless 
there  is  evidence  to  show  that  it  has  been  divested.  The 
parties  in  this  case  must  be  presumed  to  have  died  at  the 
same  time,  and  therfe  being  nothing  to  show  that  the  hus- 
band survived  his  wife,  the  administration  must  pass  to  her 
next  of  kin." 

In  case  VII.  Mr.  Justice  Wightman  said:  *'We  think 
there  is  no  conclusion  of  law  upon  the  subject;  in  point 
of  fact  we  think  it  unlikely  that  both  did  actually  die  at 
the  same  moment  of  time,  but  there  is  no  evidence  to 
show  which  of  them  was  the  survivor." 

*' Where  two  persons,"  said  Lord  Chelmsford  in  case 
IX.,  *'  are  at  one  and  the  same  instant  washed  into  the  sea, 
and  disappear  together,  and  are  never  seen  any  more,  it  is 
not  possible  for  any  tribunal  called  upon  judicially  to  deter- 
mine the  question  of  survivorship,  to  form  any  judgment 
upon  the  subject  which  can  be  founded  upon  anything  but 


RULE    54.]      THE   rRESUiiraiOX    OF   SURVIVOKSIIIP.  245 

mere  conjecture  derived  from  age,  sex,  constitution,  or 
strength  of  body  or  mind  of  each  individual,  and  as  our 
law  has  not  established  any  rules  of  presumption  for  these 
rare  and  extraordinary  occasions,  the  uncertainty  in  which 
they  are  involved  leaves  no  greater  weight  on  one  side  or 
the  other  to  incline  the  balance  of  evidence  either  way. 
If,  therefore,  it  is  necessary  for  W.  W.  to  establish  his 
claim  under  the  will  of  Mrs.  U.,  that  he  should  prove 
that  she  survived  her  husband,  he  must  altogether  fail." 

In  case  XIV.  it  was  said  :  ♦'  There  is  no  legal  presump- 
tion ^  which  courts  are  authorized  to  act  upon  that  there 
was  a  survivor,  any  more  than  that  there  was  a  particular 
survivor.  It  is  not  claimed  that  the  children  died  at  the 
same  time.  Indeed,  it  may  be  conceded  that  it  is  unlikely 
that  they  ceased  to  breathe  at  precisely  the  same  instant, 
and  as  a  physical  fact  it  may  perhaps  be  inferred  that  they 
did  not.  But  this  does  not  come  up  to  the  standard  of 
proof.  The  rule  is  that  the  law  will  indulge  in  no  pre- 
sumption on  the  subject.  It  will  not  raise  a  presumption 
by  balancing  probabilities,  either  that  there  was  a  survivor 
or  who  he  was.  In  this  respect  the  common  law  differs 
from  the  civil  law.  *  *  *  It  is  regarded  as  a  question 
of  fact  to  be  proved,  and  evidence  merely  that  two  per- 
sons perished  by  such  a  disaster  is  not  deemed  sufficient. 
If  there  are  other  circumstances  shown,  tending  to  prove 
survivorship,  courts  will  then  look  at  the  whole  case  for 
the  purpose  of  determining  the  'question;  but  if  only  the 
fact  of  death  b}^  a  common  disaster  appears,  they  will  not 
undertake  to  solve  it  on  account  of  the  nature  of  the  ques- 
tion and  its  inherent  uncertainty.  It  is  not  impossible  for 
two  persons  to  die  at  the  same  time,  and  when  exposed 
to  the  same  peril,  under  like  circumstances.  It  is  not,  as 
a  question  of  probability,  very  unlikely  to  happen.  At 
most,  the  difference  can  only  be  a  few  seconds.  The  scene 
passes  at   once  beyond  the  vision  of  human  penetration, 

1  75  N.  Y.  S7. 


246  PRESU3IPTIVE    EVIDENCE.  [rULE    56. 

and  it  is  as  unbecoming  as  it  is  idle  for  judicial  tribunals 
to  speculate  or  guess  whether  during  the  momentary  life 
struo^fi-le  one  or  the  other  may  not  have  ceased  to  gasp 
first,  especially  when  the  transmission  of  the  title  of  prop- 
erty depends  upon  it  ;  and  hence,  in  the  absence  of  other 
evidence,  the  fact  is  assumed  to  be  unascertainable,  and 
property  rights  are  disposed  of  as  if  death  occurred  at 
the  same  time.  This  is  done,  not  because  the  fact  is 
proved,  or  that  there  is  any  presumption  to  that  effect,  but 
because  there  is  no  evidence  and  no  presumption  to  the 
contrary." 

RULE  55.  —  But  where  the  calamity,  though  common  to 
all,  consists  of  a  series  of  successive  events,  separated 
from  each  other  in  point  of  time  and  character,  and 
each  likely  to  produce  death  upon  the  several  victims, 
according  to  the  degree  of  exposure  to  it,  the  differ- 
ence in  age,  sex,  or  health  may  raise  an  inference  of 
survivorship.^ 

Illustratio7i. 

I.  C,  his  daughter  H.  and  sonW.,  each  between  fifteen  and  sixteen  years 
old,  perish  in  a  shipwrecli.  The  ship  struck  a  roclc,  and  for  some  hours 
the  passengers  worlced  to  lighten  her,  and  to  reach  places  of  safety. 
The  father  was  in  very  feeble  health,  and  unable  to  reach  the  upper  deck, 
whicli  was  swept  by  the  waves  last,  and  which  the  children  reached. 
The  presumption  is  that  the  father  perished  first.^ 

RTILE  56. — And  the  one  of  several  in  a  common  dan- 
ger which  proved  fatal  to  all,  who  was  last  seen  or 
heard  alive  within  the  operation  of  the  cause  of  death, 
is  presumed  to  have  survived  the  others. 

Illustrations. 

I.  C,  his  daughter  IT.  and  son  W.  perished  in  a  shipwreck.    The  ship, 
after  striking,  was  swept  by  the  waves,  and  C,  who  was  at  the  time  on 


1  See  Coyer.  Leach,  8  Mete.  371  (1344);  Pell   v.  Ball,  1  Chceves  (Eq.).  S.C,  99 
(1S40.) 

2  See  Smith  v.  Croom  7  Fla.  147  (1S57.) 


RULE    55.]      THE   PRESUMmOX   OF   SURVIVORSHIP.  217 

the  lower  deck,  was  washed  off.  Subsequently  II.  and  W.  were  seen  on 
the  upper  deck.  The  presumptiou  is  that  H.  and  W.  survived  their 
father.i 

II.  B.  and  his  wife  perished  on  board  a  steamboat  at  sea  by  the 
explosion  of  one  of  the  boilers,  which  shattered  the  vessel  and  caused  it 
to  fall  to  pieces  and  sinlc  in  about  half  an  hour.  Mrs.  B.  was  seen  and 
heard  calling  for  her  husbaud  after  the  disaster,  but  he  was  not  heard  to 
answer,  nor  was  he  seen  at  any  time  after  the  explosion.  The  presump- 
tion is  that  the  wife  survived  the  husband.' 

III.  U.,  his  wife  and  daughter  C.  were  lost  in  a  shipwreck.  A  wave 
swept  them  from  the  deck  simultaneously.  U.  and  his  wife  were  not 
afterward  seen,  but  C.  was  subsequently  la.shed  to  a  floating  sjjar  by  a 
sailor  to  whom  she  called.  The  presumption  is  that  C.  survived  her 
parents.' 

IV.  Father  and  son  were  hanged  for  a  crime  at  the  same  time.  Wit- 
nesses oliserved  the  son  move  his  legs  after  the  father  had  apparently 
become  insensible.    The  presumption  is  that  the  son  survived.* 


1  See  Smith  v.  Croom,  7  Fla.  80  (1857.) 

a  Pell  V.  Ball,  1  Cheves  (Eq.)  S.  C.  09  (1840.) 

«  Underwood  v.  AVing,  4  Do  G.  M-  &  G.  633  (1854.) 

*  Broughlon  V.  Randal,  Cro.  £liz.  503. 


CHAPTER   XII. 

THE  PRESmiPTION  OF  IDENTITY. 

RULE  67.  —  Identity  of  name  raises  a  presumption 
of  identity  of  person,  where  there  is  similarity  of  res- 
idence (a)  or  trade  (b)  op  circumstances  (c)  or  where 
the  name  is  an  unusual  one  (I>)  ;  but  aliter  where 
the  name  is  a  common  one  and  there  are  several  per- 
sons known  of  the  same  name  and  of  the  same  place 
(E). 

As  has  been  said,  it  is  fair  and  legal  to  presume  that  the 
same  name  identifies  the  same  person  until  the  contrary 
appears  ;  for  names  are  used  for  the  very  purpose  of  iden- 
tifying the  individuals  to  whom  they  are  attached.^ 

In  dates  V.  Loftus,^  two  certificates  of  land,  one  prior  in 
date  to  the  other,  had  been  granted  to  one  Isaac  Larue, 
and  the  court  held  that  they  would  presume  that  both  had 
been  granted  to  the  same  person  ;  that  the  Isaac  Larue  in 
the  second  grant  was  the  same  person  as  in  the  first.  Mills, 
J.,  in  making  this  ruling  used  the  following  apt  language: 
"  It  has  been  truly  observed  at  the  bar  that  the  appellee 
has  not  ventured  to  deny  that  Isaac  Larue,  to  whom  the 
first  certificate  was  granted,  is  the  same  person  who 
obtained  the  last,  and  although  there  might  have  been  more 
of  the  same  name  it  does  not  necessarily  follow  that  one  of 

1  Gates  V.  Loftus,  3  A.  K.  Marsh.  202  (1820) ;  Hamshaw  v.  Kline.  57  Pa.  St.  397 
(1868);  Atchison  v.  McCulloch,  5  Watts,  13  (1836);  Bogue  v.  Bigelow,  29  Vt.  179 
(1857) ;  Phillips  v.  Evans,  04  Mo.  17  (187C) ;  State  v.  Moore,  61  Id.  279  (1S75.) ;  Gilt  v. 
Watson,  18  Id.  274  (1853) ;  Flournoy,  v.  Warden,  17  Id.  435;  Drown  v.  Mctz,  33  HI.  339 
(1864) ;  Balbcc  v.  Donaldson,  2  Grant's  Gas.  400  (IS-M) ;  Brotherline  v.  Hammond,  69 
Pa.  St.  128  (1371)  ;  Hunt  v.  Stewart,  7  Ala.  527  (1845) ;  Douglass  v.  Dakin,  46  Cal.  49 
(1873);  Trimhle  v.  Brichta,  10  La.  Ann.  778  (1855);  Givens  v.  Tidmore,  8  Ala.  745 
(1845) ;  Gamphell  v.  Wallace  46  Mich,  320  (IbSl). 

2  3  A.  K.  Marsh.  302  (1820). 

(  248  ) 


RULE  57.]    THE  PRESUMPTIOX  OF  IDENTITY.  249 

these  others  obtained  the  first  certificate.  But  we  have 
looked  into  the  testimony  and  we  find  no  proof  of  any  but 
one  Isaac  Larue  in  the  county,  or  indeed  elsewhere,  at  the 
date  of  the  certificate,  so  that  we  must  presume  that  ho  is 
the  person  who  obtained  the  first  certificate  as  well  as  the 
last,  unless  we  should  first  presume  the  existence  of  another, 
and  then  that  ho  was  the  person  who  obtained  the  first  cer- 
tificate. Such  a  presumption  would  be  wholly  unnatural  and 
without  warrant."  Again,  in  the  Michigan  case  of  Goodell 
V.  Hibbard,^  it  was  said  by  Graves,  C.  J  :  '*  The  deed  from 
Frank  A.  Goodell  to  the  plaintiff  in  ejectment  was  executed 
in  the  State  prison,  and  just  before  the  death  of  Betsey 
Goodell,  and  no  direct  or  express  evidence  was  given  to 
identify  him  as  the  Frank  A.  Goodell  of  the  class  described 
in  the  will  as  the  minor  children  of  Alexander  Goodell, 
deceased,  and  objection  is  made  for  the  want  of  such  proof. 
We  think,  in  the  absence  of  circumstances  to  cast  doubt 
upon  the  fact  of  identity,  the  identity  of  name  was  enough 
to  raise  a  presumption  of  identity  of  person.  The  general 
rule  is  too  obvious  and  well  settled  to  justify  the  citation  of 
authorities,  and  no  circumstance  ap]:)ears  to  affect  the 
operation  of  this  rule,  unless  the  fact  that  the  grantor  was 
in  the  State  prison  should  bo  so  considered,  and  we  see 
nothing  in  that,  standing  b}'  itself,  which  should  have  any 
force  upon  the  point."  So  in  a  recent  Texas  case  it  was 
said:  <' Similarity  of  name  is  said  to  be  some  evidence  of 
identity.  It  can  not  be  questioned  that  this  alone  is  ordi- 
naril}^  suflScient  evidence  of  identity  of  a  purchaser  in  a 
chain  of  conveyance  as  the  subsequent  vendor.  Although 
this  case  can  not  be  said  to  come  fully  within  this  rule,  and 
it  would  have  been  more  satisfactory  if  the  marriage  of 
L3'man  Tarbox  and  Jane  Carroll  had  been  proved,  or  that 
Jane  Carroll,  to  whom  the  land  was  conveyed  by  Lyman 
Tarbox  and  Jane  M.  Tarbox,  who  subsequently  joined  him 
in   the    couve3'auce  of    it  to  the  appellee,  was  the    same 

1  32  Mich.  55  (1875). 


250  PEESUMPTIVE  EVIDENCE.        [rULE  57. 

person  ;  jet  we  think  the  partial  similarity  of  name,  the  pos- 
ession  of  the  original  title  papers,  etc.,  sufficient  to  estab- 
lish appellee's  chain  of  title."  And  Lord  Ellenborough 
in  an  early  case  said  :  *'  The  question  being  whether  in  an 
action  at  law  an  examined  copy  of  the  plaintiff  's  answer  to 
a  bill  of  discovery  in  chancery  could  be  read,  I  must 
have  some  evidence  of  the  identity  of  the  parties.  But 
when  it  is  established  that  the  bill  in  equity  was  filed  by 
the  now  defendant  against  the  now  plaintiff,  I  will  presume 
that  the  answer  appearing  on  the  file  of  the  court  of 
chancery  was  put  in  by  the  latter,  and  I  shall  hold  the 
examined  copy  sufficient  without  the  production  of  the 
original."  ^ 

Where  it  is  proved  that  two  parties  have  the  same  name 
the  burden  is  on  a  person  suing  one  of  them  to  show  that 
the  party  sued  is  the  one  who  made  the  contract  or  is 
otherwise  liable.  This  maybe  shown,  however,  by  indirect 
evidence,  as  that  of  the  two  the  one  sued  is  in  business,  and 
the  other  not,  or  that  the  one  sued  has  had  former  business 
transactions  with  the  plaintiff,  while  the  other  has  had 
none.^ 

Illustrations. 

A. 

I.  The  question  ia,  whether  one  Samuel  Fry,  of  Plymouth  Rock,  has 
written  certain  letters  —  he  being  the  defendant  in  the  case.  A  witness 
testifies  that  he  knows  the  handwriting  of  a  Samuel  Fry,  of  ^Plymouth 
Rock,  the  only  person  of  that  name  at  the  place.  The  presumption  is 
that  he  is  the  defendant.' 

B. 

I.  S.  sues  for  medicines  and  attendance  furnished  by  him  as  a  licensed 
apothecary.  Under  the  law  he  can  not  recover  unless  he  is  licensed.  He 
produces  a  license  to  a  person  of  his  name  and  proves  that  he  practiced 
as  an  apothecary.    The  presumption  is  that  he  is  the  person  licensed.* 


1  Hodgkinson  v.  Willis,  3  Camp.  401  (1813). 

2  Jones  V.  Parker,  20  N.  II.  31  (1849). 

3  Harrington  v.  Fry,  1  Ky.  &  M.  00  (1824). 

*  Simpeon  v.  Dismore,  9  M.  &  W.  47  (1841). 


EULE    57.]         THE   rRESUMPTlOX   OF    IDENTITY.  251 

II.  An  action  is  brought  against  a  pilot  named  Wm.  Henderson,  for  neg- 
ligently navij:;uting  a  vessel.  A  pilot  named  Henderson  is  in  court  and 
answers  his  description.    The  presumption   is  that  he  is  the  defendant.^ 

III.  In  an  action  against  Charles  Lyon  for  goods  sold  to  his  intestate, 
and  a  plea  of  plene  administravit,  the  plaintiff,  in  order  to  show  assets 
offered  a  copy  of  a  bill  and  answer  by  one  Charles  L3'on  to  a  bill  filed  in 
chancery  against  him  in  the  character  of  an  administrator.  The  presump- 
tion is  that  they  are  the  same  persons  and  the  evidence  is  admitted.'' 

*•  "VVe  find  him,"  say.s  Parke,  B.,  in  ca.se  I.,  "  acting  as 
an  apothecary,  prescribing  and  dispensing  medicines  to  his 
patients,  and  then  producing  a  certificate  or  license  for  that 
purpose  in  his  name  from  the  body  empowered  by  law  to 
grant  it.     That  is  quite  sufficient  evidence  of  identity." 

In  case  II.  it  was  said  :  "  The  action  was  brought  ajjainst 
William  Henderson,  a  pilot,  and  a  person  in  court  ans-wers 
to  the  name  of  Henderson,  and  is  proved  to  be  a  pilot,  and 
to  have  been  the  pilot  on  board  the  vessel  in  question.  This 
is  evidence  from  which  the  jury  might  assume  him  to  be  the 
defendant.  But  then  the  counsel  objects  that  the  statement 
is  not  made  under  oath.  As  to  that  there  are  many  things 
which  are  incapable  of  strict  legal  proof.  A  man's  name  is 
a  mere  matter  of  reputation  ;  that  which  is  termed  in  Scotch 
law  the  status  of  a  man  is  matter  of  reputation,  and  if  pre- 
cise evidence  of  the  relationship  of  one  man  to  another  or 
other  matters  of  that  nature  were  always  required,  no  fact 
of  that  kind  could  ever  be  proved  in  practice.  Here  there 
was  evidence  of  the  identity  of  the  defendant  although  it  was 
not  proved  directly  that  the  name  of  the  party  who  answered 
in  couxt  was  William.  There  was  evidence  that  he  was  a 
pilot;  that  he  was  the  pilot  on  board  the  vessel,  and  he 
answered  to  the  name  of  Henderson.  I  think  that  is  suffi- 
cient." 

In  case  III.  Lord  Ellenborough  said:  <'  It  is  said  that  the 
evidence  wants  a  further  link  to  connect  it  with  the  defend- 
ant, and  that  it  ought  to  be  shown  that  the  Charles  Lyon  in 


1  Smith  f.  Henderson,  9  M.  &  W.  81S  (1S42). 
»  Ueuucll  V.  Lyon,  1  B.  &  Aid.  182  {,\sr,). 


252  PRESUMPTIVE    EVIDENCE.  [rULE    57. 

the  answer  was  the  present  litigant.  I  do  not  know  any 
Tvay  by  what  that  circumstance  can  be  supplied,  but  by  the 
description  in  the  answer  itself,  which  tallies  in  almost  every 
particular.  Still,  however,  it  may  be  shown  that  he  is  not 
the  same  person.  The  question  then  is  whether  public  con- 
venience requires  that  the  proof  should  be  given  by  the 
plaintiff  or  the  defendant,  and  I  rather  think  that  the  public 
convenience  is  in  favor  of  the  admissibility  of  this  proof, 
giving  the  other  party  an  opportunity  of  showing  that  he 
was  not  the  individual  named  in  the  answer.  It  should  be 
taken  as  proof  that  he  is  the  person  named  in  the  answer 
until  the  contrary  be  shown."  And  Bayley,  J.,  said: 
*'  There  is  nothing  to  show  two  administrations,  and  it  is 
rather  extraordinary  to  suppose  that  two  persons  of  the 
same  name  should  sustain  the  same  character.  It  is  not  to 
be  presumed  that  there  are  two  persons,  but  the  identity  is 
rather  to  be  presumed,  unless  the  plaintiff  could  have  shown 
the  contrary."  And  Holroyd,  J.,  added  :  "  How  does  the 
question  stand?  The  person  sued  here  is  Charles  Lyon, 
sued  as  administrator  of  Mary  Lyon,  and  the  copy  of  the 
answer  shows  that  the  bill  was  filed  against  Charles  Lj'^on, 
as  administrator  of  Mary  Lyon.  There  is  therefore  p-ima 
facie  evidence  that  the  Chailes  Lyon  in  that  court  and  in 
this  are  the  same  person,  which  is  the  only  identity 
wanted." 

C. 

I.  A  prisoner  is  indicted  under  the  name  of  K.  alias  M.  A  record  of 
a  previous  conviction  of  one  K.  alias  M.  is  produced.  The  presumption 
is  that  they  are  the  same  person. ^ 

II.  William  J.  Douglas  is  plaintiff  in  an  action.  The  defendant  sets 
up  a  judgment  obtained  in  another  court  against  William  J.  Douglass. 
The  presumption  is  that  they  are  the  same.^ 

D. 

I.  An  action  is  brought  on  a  bill  of  exchange  directed  to  "  Charles 
Banner  Crawford,  East  India  House,"  and  accepted  "  C.  B.  Crawford." 


1  state  V.  Kelsoe,  7C  Mo.  50G  (1882). 

2  Douglas  V.  Dakin,  40  Cal.  49  (1873). 


RULE    57.]         THE   PRESUMPTION   OF   IDENTITY.  253 

A  witness  proves  that  the  signature  was  that  of  a  gentleman  of  that 
name,  formerly  a  clerk  la  the  East  India  House,  but  he  does  not  know 
•whether  that  Mr.  Crawford  is  the  defendant  here.  The  presumption  is 
that  the  two  are  the  sanie.i 

II.  In  an  action  against  one  William  Leal  Evans,  for  goods  sold  and 
delivered,  it  appears  that  five  years  before,  a  person  of  that  name  liad 
been  a  customer  of  plaintiff's  and  had  written  a  letter  acknowledging 
the  receipt  of  the  goods.  The  witness  who  proves  this  does  not  know 
Avhether  the  defendant  who  answered  to  the  same  name  is  the  same  per- 
son.   The  presumption  is  that  he  is.* 

III.  An  action  is  brought  against  Henry  Thomas  Ryde,  as  acceptor  of 
a  bill  of  exchange.  The  cashier  of  the  bank  testifies  that  a  person  of 
that  name  had  kept  cash  at  the  bank  where  the  bill  was  made  payable, 
and  that  the  acceptance  is  in  his  handwriting.  lie  can  not  identify  him 
with  the  defendant  of  the  same  name.  This  is  a  sufficient  prima  facie 
case.^ 

IV.  Tlie  question  is  whether  the  defendant  was  the  Sir  J.  C.  Anderson 
who  had  signed  a  certain  bill;  a  bank  clerk  testifies  that  it  is  in  the 
handwriting  of  a  person  who  called  himself  Sir  J.  C.  Anderson,  and  had 
two  years  previous  transacted  certain  business  at  the  bank.  The  pre- 
sumption is  that  they  are  the  same.* 

V.  To  an  action  on  a  note  against  Theodore  Valney,  the  Statute  of 
Limitations  is  pleaded.  The  plaintiff's  attorney  testifies  that  he  ad- 
dressed a  letter  to  the  defendant  through  the  post-office,  and  in  response 
a  person  of  his  name  came  to  him,  and  promised  to  pay  the  debt.  He 
was  not  personally  acquainted  with  the  defendant.  The  presumption 
is  that  the  person  who  responded  to  the  letter  is  the  defendant.* 

"Does  the  name  go  for  nothing  at  all  in  any  case?  "  asked 
Denman,  C.  J.,  in  the  course  of  an  argument.^  «♦  Suppose 
the  name  of  the  defendant  had  been  William  Lemuel  Gulli- 
ver Evans,  and  a  sale  had  been  proved  to  a  party  so 
named." 

In  case  I.  it  was  said  by  Abinger,  C.  B.,  <*  I  am  of 
opinion  that  the  evidence  was  quite  sufficient.  Here  the 
bill  is  drawn  upon  by  Charles  Banner  Crawford,  and  ad- 
dressed to  him  at  the  India  House.     The  evidence  is  that 


1  Grecnshields  v.  Crawford,  9  M.  ±  W.  314  (1841). 

a  Sewell  v.  Evans,  4  Q.  B.  626  (1743). 

8  Roden  v.  Hyde,  4  Q.  B.  626  (1843). 

*  Warren  v.  Anderson,  8  Scott,  384  (1839). 

'  Kelly  r.  Valney,  5  Penn.  L.  J.  300  (1854). 

e  Sewell  v.  Erane,  4  Q.  B.  626  (1S43). 


254  PRESUMPTIVE   EVIDENCE.  [rULE    57. 

there  is  a  person  of  the  name  of  Charles  Banner  Crawford  ; 
that  he  once  belonged  to  the  India  House,  and  that  the 
acceptance  is  in  his  handwriting.  That  is  surely  sufficient 
evidence  of  identity," 

*'In  cases,"  said  Lord  Denman,  in  case  III.,  *'  where  no 
particular  circumstance  tends  to  raise  a  que^stion  as  to  the 
party  being  the  same,  even  identity  of  name  is  something 
from  which  an  inference  may  be  draw^n.  If  the  name  were 
only  John  Smith,  which  is  of  very  frequent  occurrence, 
there  might  not  be  much  ground  for  drawing  the  conclusion. 
But  Henry  Thomas  Rhydes  are  not  so  numerous,  and  from 
that  and  the  circumstances  generally,  there  is  every  reason 
to  believe  that  the  acceptor  and  the  defendant  are  ident- 
ical. «  *  *  Lord  Lyndhurst  asks,^  '  why  the  onus  of 
proving  a  negative  in  these  cases  should  be  thrown  upon  the 
defendant ;  '  the  answer  is  because  the  proof  is  so  easy.  He 
might  come  into  court  and  have  the  witness  asked  whether  he 
was  the  man." 

"  Human  tribunals,"  it  was  said  in  case  V.,  **  must 
often  proceed  upon  presumptions.  There  are  many  such 
cases  so  frequent  and  familiar  as  to  escape  observation. 
These  presumptions  are  safe,  for  they  are  founded  upon 
experience  which  is  the  best  interpreter  as  well  as  judge  of 
actions  and  events.  *  *  *  If  the  person  who  called  on 
Mr.  A.  was  not  the  defendant,  there  was  not  merely  a  fraud, 
a  false  personation,  but  the  plaintiff  must  have  procured  it. 
Identity  is  easily  disproved  by  confronting  the  party  with 
the  witness.  *  *  •  The  name  Theodore  Valney  is  an 
uncommon  one,  and  the  transaction  recent." 


E. 

I.  A  note  signed  "Hugh  Jones"  is  sued  on.  It  appears  that  there 
are  several  "  Hugh  Jones  "  at  the  phice  where  the  note  was  signed, 
and  there  is  no  evidence  to  show  that  the  "  Hugh  Jones  "  wlio  is  sued 
is  the  "  Hugh  Jones  "  who  signed  the  note.    The  plaintiff  is  non-suited.^ 

1  Whitelock  V.  Mu?grove,  3  Tyrw.  543. 

2  Jones  V,  Jones,  9  M.  &  W.  76  (1811). 


RULE    58.]         THE   rnESUMPTION    OF   IDENTITY.  255 

It  was  said  by  Williams,  J.,  in  a  subsequent  case,'  that  in 
easel,  it  appeared  that  the  name  Hugh  Jones  in  that  par- 
ticular part  of  Wales  was  so  common  as  hardly  to  be  a  nam*, 
and  the  remarks  of  Abinger,  C.  B.,  bears  this  out.  *'  The 
argument  of  the  plaintiff  might  be  correct,  if  the  case  had 
not  introduced  the  existence  of  many  Hugh  Jones  in  the 
neighborhood  where  the  note  was  made." 

RtTLE  58.  — The  fact  that  the  family  name  and  initials 
are  tlio  same  raises  no  presumption  that  the  parties 
are  the  same. 

Illustrations. 

I.  A  declaration  on  a  promissory  note  describes  it  as  made  by  Andrew 
A.  Louden.  The  note  produced  at  the  trial  is  signed  A.  A.  Louden. 
There  is  no  presumption  that  the  note  produced  is  the  one  sued  on.* 

II.  Henry  V.  Libhart  brings  an  action  on  a  judgment  in  favor  of  H. 
V.  Libhart.  In  the  absence  of  any  averment  tliat  he  vs'as  Ivnown  by  the 
latter  name  or  that  it  was  rendered  in  his  favor  by  that  name,  there  is 
no  presumption  ol  his  identity  vpith  the  plaintiff  in  such  judgment. ^ 

III.  One  Patrick  O'Neil  was  the  owner  of  a  certain  piece  of  land. 
A  deed  is  signed  by  P.  P.  O'Neil,  There  is  no  presumption  that  they 
are  the  same  persons.* 

In  case  I.  it  was  said:  *' The  plaintiff  must  produce  a 
note  and  show  it  to  be  jy^'inia  facie  the  note  of  Andrew  A. 
Louden.  Should  he,  upon  the  trial,  produce  a  note  signed 
Andrew  A.  Louden,  it  would  fill  the  allegation  in  his  decla- 
ration and  make  out  the  case.  But  suppose  the  plaintiff 
produces  a  note  signed  Andrew  A.,  will  this  be  suiKcient  to 
entitle  him  to  judgment?  It  may  be  the  note  of  Andrew 
A.  Louden.  *  *  «  j^^j^  would  it  prima  facie  be  the 
note  of  Andrev/  A.  Louden  ?  We  think  not.  Suppose  the 
note  produced  to  be  signed  Louden,  or  A.  Louden,  the  same 
question  would  arise.  Or  suppose  it  signed  A.  A.  Louden, 
does  this  prima  facie   indicate  Andrew  A.  Louden?     Why 

1  Rodon  V.  Ryde,  4  Q.  B.  625  (1843). 
-  Louden  v.  Walpole,  1  Ind.  321  (1S48). 
«  Bennett  v.  Libhart,  '27  Mich.  480  (1873). 
*  Burford  v.  McCue,  63  Pa.  St.  431  (1SC6). 


256  PRESU5IPTIVE    EVIDEXCE.  [RULE    59. 

rather  than  Abraham  or  Armstrong  or  Alexander  A.  Lou- 
den?" 

In  case  IT.,  it  was  said:  *'  Had  Libhart  sued  upon  a  note 
or  other  written  contract  made  payable  to  H.  V.  Libhart, 
the  possession  of  the  writing  by  him  would  have  been  some 
evidence  that  he  was  the  party  mentioned  therein.  But 
there  is  no  room  for  a  similar  presumption  in  the  case  of 
the  record  of  a  judgment  upon  which  one  man  can  bring 
suit  with  the  same  facility  as  another,  if  he  will  make  the 
averment  of  identity  with  the  party  plaintiff.  We  have, 
therefore,  nothing  in  this  case  to  support  the  judgment, 
unless  we  are  at  liberty  to  assume  as  a  legal  presumption 
that  where  the  family  name  and  initials  are  the  same  there 
is  identity  of  person.  This  is  going  farther  than  we  think 
is  admissible." 

RtTLE  59.  —  Where  two  persons  of  the  same  name  oc- 
cupy different  positions  or  relations,  the  presumption 
is  that  they  are  different  persons.^ 

Illustrations. 

I.  It  is  objected  that  the  judge  presiding  at  the  time  an  order  was 
made  in  a  certain  cause  was  cue  of  the  counsel  in  the  case  at  its  com- 
mencement. Their  names  are  the  same.  There  is  no  presumption  that 
they  are  one  and  the  same  person. ^ 

II.  The  deposition  of  Walter  D.  Scott  is  offered,  but  is  objected  to 
on  the  ground  that  the  defendant  and  one  Walter  D.  Scott  had  once  been 
partners.  There  is  no  presumption  that  the  witness  and  the  defendant's 
partner  are  the  same  person. ^ 

ni.  A  note  is  sued  on  in  which  the  payer  and  the  payee  are  of  the 
same  name.    The  presumption  is  that  they  are  different  persons.* 

rv.  Two  persons,  A.  and  B.,  are  petit  jurors  in  a  case.  It  is  proved 
that  there  are  on  the  list  of  grand  jurors  serving  at  the  same  time  two 
persons  of  the  same  name.  There  is  no  presumption  that  A.  and  B., 
the  grand  jurors,  are  A.  and  B.,  the  petit  jurors.^ 


1  See  Nicholas  v.  Lansdale,  Litt.  Sel.  Cas.  21  (1805). 
s  Ellsworth  V.  Moore,  5  Iowa,  486  (1857). 
s  Cozzens  v.  Gillispic,  4  Mo.  82  (1835). 
*  CooptT  r.  Toston,  1  Duv.  92  (18(i3). 
Wickerbham  v.  People,  2  lU.  128  (1834). 


KULE    Gl.]         THE   PRESUMPTION   OF   IDENTITY.  2j7 

V.  A  certificate  of  sale  of  property  for  taxes  is  made  to  "  Michael 
Duudon,"  but  the  deed  is  made  to  "  Patrick  Michael  Dundon,  Jr."  It 
appears  that  there  are  two  persons  of  the  name  of  Dundon,  one  named 
Michael,  the  other  Patrick.  The  deed  Is  not  admissible  in  evidence 
without  proof  that  the  two  names  were  intended  for  the  same  person. ^ 

"The  court  knows,  judicially,"  it  was  said  in  case  I., 
*'the  judf^es  in  the  different  judicial  districts  in  this  State, 
and  will  presume,  in  the  absence  of  any  showing  to  the  con- 
trary, that  the  courts  of  the  District  Court  are  held  by 
such  judges,  but  we  cannot  know  that  the  attorney,  J.  D. 
Thompson,  and  the  Honorable  J.  D.  Thompson,  judge  of 
the  Thirteenth  Judicial  District,  are  one  and  the  same  per- 
son." 

RULE  60.  —  The  initials  preceding  a  surname  are  pre- 
sumed to  be  the  initials  of  a  name  and  not  the  abbrevi- 
ations of  a  title. 

Illustrations. 

I.  It  is  proved  that  the  Rev.  Patrick  O'Neil  is  the  owner  of  a  certain 
piece  of  land.  A  deed  is  produced  signed  R.  P.  O'Neil.  There  is  no 
presumption  that  they  are  the  same,  for  the  "  R  "  in  the  deed  is  presumed 
to  stand  for  another  name,  and  not  to  be  a  contraction  for  Reverend.^ 

RtTLE  61.  —  Where  an  interest  is  claimed,  mere  identity 
of  name  to  the  person  entitled  is  insufficient. 

I  Ihcstrations. 

I.  It  appears  that  one  Timothy  Mooers  is  entitled  to  an  interest  in  an 
estate.  A  person  of  that  na-rae  brings  an  action  thcrof<)r.  From  the 
identity  of  names  alone  it  is  held  that  there  is  no  presumption  that  the 
person  bringing  the  suit  is  the  one  entitled.^ 

II.  In  an  action  of  ejectment  J.  shows  a  patent  to  A.  and  establishes  his 
descent  from  a  person  of  that  name.  The  presumption  is  that  J.'s  ancestor 
and  A.  are  the  same  person.* 


1  McMinn  f.  Whelan,  27  Cal.  SOO  (1868). 

-  Burford  r.  McCue.  53  Pa.  St.  431  (1S6C).  So  In  pleadinp  where  an  initial  is 
used  instead  of  the  full  name,  it  will  be  presumed  to  be  an  abbreviation,  and  uot  a 
different  name.    Lcc  v.  Mendel,  40  111   350  (1S66). 

3  Mooers  V.  Bunker,  29  X.  II.  431  (1S54). 

*  Jackson  v.  King,  5  Cow.  23"  (1j  Am.  Dec.  468).  (1825). 
17 


2j8  PRESU3IPTIVE    EVIDENCE.  [rULE  G2. 

*'  The  first  thing  to  bo  proved,"  it  was  said  in  case  I., 
*'  is  that  the  plaintiff  is  seised  of  the  share  he  claims  of  the 
real  estate.  If  his  name  is  John  Smith  or  John  Jones,  or 
any  of  the  common  or  frequently  recurring  names,  it  would 
be  at  once  apparent  that  to  prove  a  John  Smith  to  be  enti- 
tled is  but  one  step  to  prove  the  plaintiff's  title;  the  next 
is  to  prove  that  he  is  the  same  person.  In  the  nature  of 
things  the  same  question  must  arise  in  every  case.  It  is 
not  often  a  matter  of  controversy  whether  the  identity  of 
t'he  plaintiff  is  established,  because  the  doubt,  if  any  arises, 
can  generally  be  readily  removed.  But  if  the  question  is 
made,  a  jury  is  not  at  liberty  to  presume  that  a  person  even 
of  so  peculiar  name  as  Timothy  Mooers  is  the  same  per- 
son as  the  man  of  the  same  name  who  is  shown  to  be  enti- 
tled to  a  particular  estate." 

RULE  62. — Where  father  and  son,  or  two  persons  of 
different  ages,  hear  the  same  name,  that  name  when 
used  is  presumed  to  indicate  the  father  or  the  elder 
of  the  two,  as  the  case  may  be. 

Illustrations. 

I.  An  action  is  brought  by  Henry  Sweeting,  the  younger,  on  a  promis- 
sory note  payable  to  Henry  Sweeting.  It  is  proved  that  there  are  two 
persons  of  this  name — father  and  son.  The  presumption  is  that  the  note 
is  payable  to  the  father.^ 

II.  An  indictment  alleges  that  a  woman  named  therein  had  committed 
adultery  Avith  one  Levi  Wallace.  It  appears  that  there  are  a  father  and 
son  of  that  name.  The  presumption  is  that  the  father  was  intended,  and 
evidence  of  adultery  with  the  son  is  inadmissible.^ 

III.  A  devise  was  made  to  John  Cluer.  The  presumption  is  that  it 
was  the  father  and  not  the  sou  of  that  name,  who  was  intended  to 
take.' 

1  Sweeting  v.  Fowler,  1  Stark.  106  (1815.)  Fyffo  v.  Fyffe,  lOG  111.646  (1883).  In 
Stebbing  v.  Spicer,  8  C.  B.  827  (1*19),  this  case  was  followed,  but  it  was  held  that  the 
presumption  was  rebutted  by  the  sou's  iudorsement  of  the  note.  And  see  Itiucaid 
V.  Howe,  10  Mass.  203  (1813). 

2  State  V.  Vittum,  9  N.  II.  519. 

*  Jones  V.  Newman,  1  W.  Black.  60. 


IIULEC2.]  THE   PRESUMrTION   OF   IDENTITY.  2j0 

IV.  A  deed  of  land  Tvas  executed  to  Joshua  Grauijer.  There  are  two 
persons  of  that  name  living  at  the  time  —  father  and  son.  The  preaump- 
tion  is  that  the  father  was  the  grantee.' 

v.  There  are  two  persons  of  the  name  of  A.  B.  father  and  son.  An 
assignment  of  a  land  curtKicate  is  made  to  A.  B.  The  presumption  is 
that  tile  father  was  intended.^ 

In  an  English  casc^  jiulgracut  had  been  obtained  a^^ain.st 
Joseph  Jannain,  the  son  of  a  person  of  the  same  name, 
and  fieri  facias  was  issued  against  hira  without  further  de- 
scription, under  which  the  goods  of  his  father  were  sold.  It 
was  hehl  that  the  writ  afforded  no  justification  to  the 
sheriff.  "It  is  undoubtedly  true,"  said  Tindal,  C.  J., 
"  that  if  the  father  and  son  have  the  same  name  of  bap- 
tism and  surname,  and  the  name  of  baptism  and  surname 
only  bo  stated  in  the  writ  without  any  addition  thereto, 
prima  facie  the  son  shall  not  be  intended.  But  it  is  equally 
true  that  if  the  action  is  brought  against  the  son  without 
any  addition,  and  such  want  of  addition  is  not  pleaded  in 
abatement,  a  judgment  obtained  in  such  action  against  the 
son,  and  a  writ  of  execution  upon  such  judgment  are  good 
against  him  by  the  name  inserted  in  the  writ.  Although, 
tlierefore  the  want  of  addition  impovts  priina  fiacie  that  the 
son  is  not  intended,  it  is  no  more  than  a,  prima  facie  intend- 
ment, for  the  son  may  be  the  pei-son  really  intended  by  the 
writ.  The  situation,  therefore,  of  the  sheriff,  under  such  a 
state  of  circumstances,  seems  to  be  the  same  as  if  he  had 
received  a  writ  against  a  defendant  described  by  the  name 
of  J.  S.  in  the  writ,  and  there  appeared  at  the  time  of  exe- 
cuting the  writ  to  be  two  persons  of  the  name  of  J.  S.  ;  in 
which  case  there  can  be  no  doubt  but  that  the  sheriff  would 
be  liable,  if,  through  inadvertency  or  mistake,  he  took  the 
person  or  the  goods  of  the  wrong  J.  S."  In  the  New 
Hampshire  case,  on  the  otlicr  hand  (case  II.),  it  was  held 
that  a  crime  being  charged,  the  presumption  was  not  rebut- 

1  Stevens  v.  West,  R  .Jones  (L.)  50  (1S,")S) ;  Graves  v.  Colwell,  90  lU.  615  (1S:<.) 

2  Browu  V.  Bcuight,  3   niackf.  30;  23  Am.  Dec.  S73  (1S32).     Lcpiot  r.  Browne 
1  Salk.  7. 

3  Jarmaia  v  Cooper.  C  M.  A  S2S  (1S43), 


2 GO  PRESUJiPTIVE   EVIDENCE.  [nULE  62 

table.  The  woman  was  accused  of  adultery  with  Levi 
Wallace,  and  there  were  two  Levi  Wallaces-:—  father  and 
son.  *' The  question  then  is,"  said  the  court,  "whether 
the  respondent  is  informed  by  this  indictment  that  she  is 
accused  of  adultery  with  the  individual  to  whom  the  evi- 
dence related,  or  whether  she  is  in  fact  informed  by  it  that 
she  is  accused  of  intercourse  with  Levi  Wallace,  the  elder 
There  can  be  no  doubt  that  evidence  to  prove  that  the 
respondent  had  been  guilty  of  adultery  with  Levi  Wallace, 
the  elder,  must  have  been  admitted,  if  it  had  been  offered 
at  the  trial  of  this  indictment.  If  evidence  of  adultery 
with  Levi  Wallace,  Junior,  was  rightfully  admitted,  it  would 
present  a  case  where  proof  that  the  respondent  had  been 
guilty  of  the  offense  with  either  of  one  of  two  individuals 
might  be  offered  under  an  indictment  which  charged  an 
offense  with  one  only.  That  cases  of  this  kind  may  occur 
there  is  no  doubt.  Where  there  are  two  or  more  individu- 
als of  the  same  name  residing  in  a  town  who  have  no  usual 
addition  to  designate  one  from  the  other,  it  may  result  from 
the  nature  of  the  case.  And  perhaps  the  same  may  be  true 
where  there  is  merely  a  territorial  designation  sometimes  used 
to  distinguish  different  individuals  of  the  same  name,  but 
not  used  by  either  of  them  for  that  purpose.^  But  where 
there  are  two  persons  of  the  same  name,  father  and  son, 
residin<x  in  the  same  town,  and  the  latter  uses  a  well  known 
addition  to  his  name,  as  '  junior '  or  *  younger  '  to  designate 
him  from  his  father,  and  he  is  usually  known  by  such  des- 
ignation, we  are  of  an  opinion  that  an  indictment,  in  order 
to  allege  any  offense  as  committed  with  him  or  upon  him, 
should  connect  with  his  name  the  ordinary. addition  which  is 
by  himself  and  others  used  to  distinguish  him  from  his 
father,  and  that  in  the  absence  of  such  addition,  the  indict- 
ment must  be  understood  to  allege  the  offense  to  have  been 
committed  with  or  upon  the  latter."  But  the  same  rule,  it 
seems,  does  not  apply  to  mother  and  daughter.^ 

1   Coit  V.  Starkrveather,  8  Conn.  203. 

s   B.  V.  Tease,  3  J3.  &  Aid.  579  (1S20),  and  see  11.  v.  Bailey.  7  C.  &  P.  261  (1S35). 


IIULE  03,]  THE    rUESUMPTIOX    OF    IDENTITY.  2G1 

In  case  IV.,  though  the  parties  were  father  and  son,  a 
more  extended  principle  was  announced  by  the  court  in  con- 
formity with  the  rule  as  stated  above.  ♦'  The  rule,"  said 
Battle,  J.,  "  may  be  laid  down  more  broadly,  that  in  all 
cases  where  there  are  two  persons  having  the  same  name, 
whether  they  stand  to  each  other  in  relation  of  father 
and  son  or  not,  the  elder  is  always  presumed  to  be  meant 
when  there  is  no  addition  to  the  name.  The  reason  is,  that 
when  one  has  a  particular  name,  and  afterwards  there  is  a 
younger  person  to  whom  the  same  name  is  given,  the  first 
does  not  thereby  cease  to  be  known  by  that  appellation,  but 
the  latter  must  be  distinguished  from  him  by  the  addition  of 
*  junior,'  or  perhaps  in  some  other  way." 

RULE  63.  —  And  the  identity  of  tilings  may  be  presumed 
from  circumstances.^ 

Illustrations. 

I.  A  certain  case  is  proved  to  have  been  on  a  certain  day  removed 
from  a  justice's  court  to  tlie  Supremo  court.  A  subsequent  order  of  the 
Supreme  Court  dismissing  from  its  docket  a  cause  having  the  same 
title  is  introduced.    The  presumption  is  that  it  is  the  same  cause. ^ 

II.  A  contract  to  convey  "  a  house  on  Church  Street  "  is  dated  at  Bos- 
ton.   The  presumption  is  that  the  house  is  situated  in  Boston.* 

III.  An  action  is  brouglit  on  a  note  made  by  B.  to  C.  The  action  is 
barred  by  limitation,  but  C.  relies  on  a  new  promise.  The  promise  is 
made  in  a  letter  in  which  B  aclinowledges  and  undertakes  to  pay  "his 
debt."    The  presumption  is  that  this  refers  to  the  debt  sued  on.* 

1   Morris  r.  Landauer,  48  Iowa,  1?.i  (1878);  Byrd  f.  Fleming,  4  Bibb.   145  (1315} ; 
Beatty  v.  Michon,  9  La.  Ann.  103  (1854). 
»    Howard  r.  Rockwell,  1  Doug.  (Mich.)  315  (1844). 
8  Mead  v.  Parker,  115  Mass.  413  (1874). 
«   Coles  V.  Kelsey,  2  Tex.  541 ;  47  Am.  Dec.  6G1 ;  (1847). 


CHAP  TEE    XIII. 

THE  PRESOIPTION  OF  INTENT. 

RinLiB  64. — Where  a  person  does  an  act,  he  is  pre- 
sumed in  so  doing  to  have  intended  that  the  nat- 
ural (A)  and  legal  (B)  consequences  of  his  act  shall 
result.^ 

Illustrations. 

A. 

I.  W.  wrote  and  published  of  II.  that  he  had  colluded  with  an  insolv- 
vent  tenant  in  setting  up  a  fictitious  distress.  In  an  action  of  libel 
brought  by  H.  against  W.  the  judge  leaves  it  to  the  jury  to  say  whether 
W.  intended  to  injure  II.  by  the  publication.  This  is  error  because  the 
tendency  of  the  libel  being  injurious  to  H.,  "W.  is  presumed  to  have 
intended  it  to  be  so. 

II.  A  baker  is  charged  with  delivering  adulterated  bread  for  the  use  of 
a  public  asylum.  It  is  proved  that  A.  delivered  the  bread.  The  pre- 
sumption is  that  he  intended  it  to  be  eaten.' 

III.  B.  is  charged  with  setting  fire  to  a  building  with  intent  to  injure 
the  owner.  It  is  proved  that  B.  fired  the  building.  The  presumption 
arises  that  he  intended  to  injure  the  owner.* 

IV.  A  debtor  knowing  himself  to  be  insolvent,  executes  a  bill  of  sale 
and  an  assignment  of  his  book  accounts  to  one  of  his  creditors.  The  pre- 
sumption is  that  this  was  done  with  the  intention  of  giving  a  preference 
to  such  creditor. 5 

V.  A  married  man  enters  a  house  of  prostitution  and  remains  there 
all  night.    The  presumption  is  that  he  committed  adultery  while  there. 

1  state  V.  Hessenkamp,  17  Iowa,  25  (1864) ;  State  v.  Presnell,  13  Ired.  (L.)  105  (1851) ; 
Hayes  v.  State,  58  Ga.  47  (1877) ;  lloskiiis  v.  State,  11  Id.  '.)2  (1852) ;  Lawrence  v.  Stale, 
68  Ga.  280  (1881).  "  Every  man  acting  intelligently  will  be  presumed  to  intend  the 
necessary  consequences  of  bis  acts."  Holmes  v.  Holmes,  etc.,  Blanufg.  Co.,  37 
Conn.  278  (1870).  But  a  party  is  not  presumed  to  intend  remote  consequences  of 
his  acts.    Nicol  v.  Crittenden,  55  Ga.  41)7  (1875). 

2  Ilairc  V.  Wilson,  DB.  &  C.  G43  (182!)) ;  King  v.  Harvey,  3  D.  &  R.  464  (1823). 

3  King  V.  Dixon,  3  M.  &  S.  12  (1814). 
*  R.  V.  Fanning,  R.  &  R.  207  (1811). 

6  Ecker  V.  McAllister.  45  Md.  200  (1876) ;  Gardner  v.  Lewis,  7  Gall.  377  (1848). 
«  Evans  V.  Evans,  41  Cal.  103  (1871) ;  Astley  v.  Aitley,  1  Utigg.  Ecc.  720  (1S28). 

(2(J2) 


RULE    Gi.]  THE   PRESOITTION   OF    INTENT.  203 

VI.  A  wife  who  resided  in  Massachusetts  goes  to  Maine  and  immedi- 
ately applies  for  and  obtains  a  divorce  for  causes  not  a  grouml  for 
divorce  in  Massachusetts.  The  presumption  arises  that  her  purpose  in 
removing  to  Maine  was  to  obtain  a  divorce.^ 

YII.  A  statute  provides  that  certain  conveyances  made  with  intent  to 
give  a  preference  to  certain  creditors  shall  be  void.  A.  malces  a  convey- 
ance whose  provisions  prefer  certain  creditors.  The  presumption  is  that 
A.  intended  to  give  a  preference. ^ 

"The  judge, "said  Tenterden,C.  J.,incasel.,  "  ought  not 
to  have  left  it  as  a  question  to  the  jury  whether  the  defendant 
intended  to  injure  the  plaintiff,  for  every  man  must  bo  pre- 
sumed to  intend  the  natural  and  ordinary  consequences  of 
hisownact."  And  Littledale,  J.,added:  <♦  If  the  tendency 
of  the  publication  was  injurious  to  the  plaintiff,  then  the  law 
will  presume  that  the  defendant,  by  publishing  it,  intended 
to  produce  the  injury  which  it  was  calculated  to  effect." 

In  case  II.  Lord  Ellenborough  said,  that  it  was  a  univer- 
sal principle  that  when  a  man  is  charged  with  doing  an  act, 
of  which  the  probable  consequence  may  be  highly  injurious, 
the  intention  is  an  inference  of  law  resulting  from  the  doing 
the  act,  and  here  it  was  alleged  that  he  delivered  the  loaves 
for  the  use  and  supply  of  the  children,  which  could  only 
mean  for  the  children  to  eat,  for  otherwise  they  would  not 
be  for  their  use  and  supply. 

In  case  VH.,  Shaw,  C.  J.,  said:  "But  the  statute  pro- 
vides that  the  acts  which  it  prohibits  must  be  done  with  an 
intention  to  give  a  preference.  The  intent  to  prefer  is 
essential,  but  every  person  is  to  be  presumed  to  intend  the 
natural  and  probable  consequences  of  his  own  acts,  and  if 
such  acts  do  in  fact  as  this  do  give  a  very  large  preference, 
it  is  competent  for  the  jury  to  infer  the  intent.  It  does  not 
rebut  this  intent  to  show  that  the  debtor  has  also  another 
motive  to  the  proceeding,  namely,  an  expectation  of  pecu- 
niary or  other  future  benefit  to  himself  by  means  of  further 
loans  of  money,  and  being  enabled  thereby  to  continue  his 
business." 

1  Cliape  r.  Chase,  G  Gr.iy,  LIT  (IPSO). 

»  Deuuy  v.  Dana,  3  Gush.  100  (1&4S) ;  Bcals  v.  Clark,  13  Gray,  13  (ISoO). 


2G4  PKEsu^irxiYE  EVIDE^XE.  [rule  G4. 

B. 

I.  A.,  B.,  and  C.  sign  a  note  "  as  trustees  "  of  a  church,  it  being  repre- 
sented to  them  that  no  individual  liability  could  arise  from  their  act. 
But  the  law  considers  a  note  so  signed  as  binding  the  signer  personally. 
The  presumption  is  that  A.,  B.,  and  C.  intended  to  bind  themselves  per- 
sonally.^ 

II.  A.,  Tvho  holds  two  claims  against  B.,  gives  him  a  release  under  seal 
of  one  and  a  simple  receipt  of  payment  of  the  other.  The  presumption  is 
that  A.  intended  that  the  former  should  be  conclusive,  and  that  the  latter 
should  not. 2 

III.  A  debtor  makes  a  fraudulent  preference  by  assignment  of  his 
property.  He  makes  also  a  "  conveyance  of  his  property  for  the  benefit 
of  creditors."  The  law  presumes  that  the  intent  of  the  conveyance  was 
to  delay  or  defraud  his  creditors. ^ 

IV.  A.  forges  the  name  of  B.  to  a  bill  of  exchange  and  negotiates  it. 
The  presumption  is  that  A.  intended  to  defraud  B.,  and  his  intention  to 
pay  it  when  it  became  due  is  irrelevant.* 

V.  B.  forges  C.'s  name  to  acheck  on  the  bank  of  D.  C.  has  no  account 
there.    The  presumption  is  that  B.  intended  to  defraud  C.^ 

VI.  A.  was  employed  by  B.  to  purchase  stock  toacertain  amount.  A. 
pave  B.  a  forged  receipt  for  stock  for  that  amount.  The  presumption  is 
that  A.  did  this  with  the  intention  of  defrauding  B.,  and  B.'s  opinion  that 
he  did  not  intend  to  defraud  is  irrelevant. ^ 

VII.  C.  is  indicted  for  issuing  a  forged  bank-note  with  intent  to 
defraud  the  bank.  The  note  was  issued  by  C.  to  a  third  person,  and  it 
appeared  that  its  execution  was  such  as  to  render  its  spuriousness  easily 
detectable  by  the  offlcers  of  the  bank  who  must  examine  it  before  paying 
it;  but  this  an  ordinary  person  would  not  discover.  C.  is  presumed  to 
have  intended  to  defraud  the  bank.' 

VIII.  A.  sets  lire  to  a  building.  The  presumption  is  that  he  intended 
to  destroy  it.^ 

IX.  A.  gives  a  promissory  note  to  B.  The  presumption  is  that  A.  and 
B.  intended  that  the  note  should  be  paid  in  legal  currency.' 

X.  A  statute  provides  that  the  failure  to  pay  over  money  by  a  public 
officer  shall  be  punishable ;  a  public  officer  is  indicted  for  failing  to  turn 

1  Mears  v.  Graham,  8  Blackf.  144  (1846) ;  Burrit  v.  Dickson,  8  Cal.  113  (U57). 

s  Jones  V.  Ricketts,  7  Md.  108  (1^54). 

«  Ex  parte  Villars,  L.  R.  9  Ch.  App.  443  (1874). 

«  R.  V.  Hill,  2  Moody,  30  (1S38). 

6  R.  V.  Nash,  2  Den.  C.  C.  498  (18.')2). 

«  R.  V.  Bheppard,  R.  &  R.  ICO  (1809). 

'  R.  V.  Mazagora,  R.  &  R.  291  (1815). 

8  People  r.  Orcutt,  1  Park.  C.  C.  252  (1851). 

«  Williams  v.  Boozemun,  18  La.  Ann.  532  (1366). 


IIL'LK    04.]  THE    PRESUirrriON-    OF    INTENT.  205 

over  a  license  fee  collected  by  him.     The  presumption  is  that  his  failure 
was  willful  and  intentional.' 

Ill  case  II.  it  was  said:  "When  tlio  law  ascribes  to  one 
iusti'ument  a  conclusive  and  to  another  a  prima  facie  char- 
acter, we  must  presume  that  parties  using  either  intend  it 
to  operate  according  to  its  legal  effect.  A  release  will  dis- 
charge a  debt  when  a  receipt  will  not.  Persons  may  settle 
in  good  faith  under  the  impression  that  the  amount  paid  is 
all  that  is  due.  But  it  sometimes  happens  that  mistakes 
occur,  and  to  enable  parties  to  correct  them  the  law  has 
declared  that  mere  receipts  are  not  conclusive." 

In  case  III.  Lord  Chancellor  Cairns  said:  "It  is  true 
that  under  this,  as  under  previous  statutes  of  bankruptcy, 
two  acts  are  specified  which  if  done  by  the  bankrupt  are 
not  only  acts  of  bankruptcy,  but  are  also,  if  followed  by 
bankruptcy,  void.  One  is  a  conveyance  or  assignment 
of  the  bankrupt's  property  for  the  benefit  of  creditors,  and 
the  other  is  a  conveyance  or  assignment  fraudulent  or  by 
way  of  fraudulent  preference.  It  is  to  be  observed  as  to 
one  of  these  acts,  namely,  a  conveyance  or  assignment 
by  way  of  fraudulent  preference,  special  provisions  have 
always  been  made  in  bankruptcy'-  legislation,  making  such 
a  conveyance  or  assignment  void  by  express  enactment, 
and  reducing  it  accordingly;  and  as  to  the  other,  namely, 
a  conveyance  in  trust  for  all  creditors,  it  has  been  held 
from  the  earliest  times  of  bankruptcy  law,  that  a^  the 
effect  of  such  a  conveyance  must  be  to  delay  or  defeat 
creditors,  the  law  will  presume  an  intention  to  delay  or 
defeat  creditors,  and  the  conveyance  would  therefore  be 
invalid  as  against,  and  perhaps  even  without  reference  to 
the  policy  of  the  bankruptcy  laws.'* 

"The  recorder,"  said  Maule,  J.,  in  case  V.,  "  seems  to 
have  thought  that  in  order  to  prove  an  intent  to  defraud, 
there  should  have  been  some  person  defrauded  or  who 
might  possibly  have  been  defrauded.  But  I  do  not  think 
that   at   all    necessary.     A   man   may  have    an   intent   to 

1  state  r.  Ueatou,  77  N.  C.  504  (1S77). 


2G6  PREsmiPTivE  EYiDExcE.  [kule  G5, 

defraud  and  yet  there  may  not  be  any  person  who  could 
be  defrauded  by  his  act.  Suppose  a  person  with  a  good 
account  at  his  bankers,  and  a  friend  with  his  knowledge 
forces  his  name  to  a  check,  either  to  try  his  credit  or 
to  imitate  his  handwriting,  there  would  be  no  intent  to 
defraud,  though  there  might  be  parties  who  might  be 
defrauded;  but  where  another  person  has  no  account 
at  his  bankers,  but  a  man  supposes  that  he  has,  and  on 
that  supposition  forges  his  name,  there  would  be  an  intent 
to  defraud  in  that  case,  although  no  person  could  be  de- 
frauded." 

In  case  X.  it  was  said  :  *'As  men  do  not  generally  violate 
the  criminal  code,  the  law  presumes  every  man  innocent, 
and  this  presumption  of  innocence  is  to  be  observed  by  the 
jury  in  every  case.  But  some  men  do  violate  the  law,  and 
as  they  seldom  do  unlawful  acts  with  innocent  intentions, 
the  law  therefore  presumes  every  act  in  itself  unlawful  to 
have  been  criminally  intended  until  the  contrary  appears. 
A  familiar  example  is  on  the  trial  of  a  case  of  homicide. 
Malice  is  presumed  from  the  fact  of  killing,  and  the  burden 
of  disproving  the  malice  is  thrown  upon  the  accused.  The 
same  principle  pervades  the  law  in  civil  as  well  as  criminal 
actions.  Indeed,  if  this  were  not  so  the  administration 
of  the  criminal  law  would  be  practically  defeated,  as  there 
is  in  most  cases  no  other  way  of  sustaining  the  intent  than 
by  establishing  the  unlawfulness  of  the  act. 

KULiE  65.  — WTiere  an  act  is  criminal  per  se  a  criminal 
intent  is  presumed  from  tlie  commission  of  the  act.^ 

Illustrations. 

I.  N.  Is  proved  to  have  been  stabbed  \vith  a  dirk  knife  by  T.,  from 
which  wound  he  instantly  died.  T.  is  presumed  to  have  intended  to 
kill  N.2 

1  People  V.  March,  6  Cal.  543  (1S50) ;  Murphy  v.  Com.  23  Grat.  960  (1S73) ;  McCone 
V.  nigh,  24  Iowa,  336  (1868) ;  Murphy  v.  Slate,  37  Ala.  142  (1861) ;  Carroll  v.  State,  23 
Ala.  28  (1853). 

2  Com.  V.  York,  9  Mete.  93  (1845) ;  Murphy  v.  People,  37  111.  447  (1865) ;  Risgs  v. 
State,  30  Miss.  636  (1856) ;  State  v.  Bertrand,  3  Oregon,  61  (1868) ;  State  v.  Holme,  54 
Mo.  153  (1873) ;  Conner  v.  State,  4  Yerg.  137  (1833). 


RULE    G.').]  THE   rRESUMmON   OF   INTENT.  207 

II.  S.  shoots  ftt  C.  who  is  on  horseback.  The  ball  takes  cfft-ct  on  C. 
and  kills  him.  S.  testifies  that  he  shot  at  C.  intending  only  that  his  horse 
Bhould  throw  him.     The  presumption  is  that  S.  intended  to  kill  C.^ 

In  CommomveaUh  v.  Wehster,"^  Chief  Justice  Shaw  paid: 
**  Tho  ordinary  feelings,  passions,  and  propensities  under 
which  parties  act  are  facts,  known  by  observation  and 
experience;  and  they  are  so  uniform  in  their  o})cration 
that  a  conclusion  may  be  safely  drawn  that  if  a  person  acts 
in  a  particular  manner  he  does  so  under  the  influence  of  a 
particular  motive.  Indeed,  this  is  the  only  mode  in  which 
a  hirge  class  of  crimes  can  be  proved.  I  mean  crimes 
which  consist  not  merely  in  an  act  done,  but  in  the  motive 
and  intent  with  which  they  are  done.  But  this  intent  is  a 
secret  of  the  heart  which  can  only  be  directly  known  to 
tho  searcher  of  all  hearts  ;  and  if  the  accused  makes  no 
declaration  on  the  subject,  and  chooses  to  keep  his  own 
secret,  which  he  is  likely  to  do  if  his  purposes  are  criminal, 
such  criminal  intent  may  be  inferred  and  often  is  safely 
inferred  from  his  conduct  and  external  acts." 

Said  Chief  Justice  Shaw,  in  case  I.:  "A  sane  man,  a 
voluntary  agent,  acting  upon  motives  must  be  presumed 
to  contemplate  and  intend  the  necessary,  natural  and  prob- 
able consequences  of  his  own  acts.  If,  therefore,  one  vol- 
untarily or  willfully  does  an  act  which  has  a  direct  tendency 
to  destroy  another's  life,  the  natural  and  necessary  conclu- 
sion from  the  act  is  that  he  intended  so  to  destroy  such 
person's  life.  So,  if  the  direct  tendency  of  the  wilful  act 
is  to  do  another  some  great  bodily  harm,  and  death  in  fact 
follows  as  a  natural  and  probable  consequence  of  the  act, 
it  is  presumed  that  he  intended  such  consequence,  and  he 
must  stand  legally  responsible  for  it.  So,  where  a  dan- 
gerous and  deadly  weapon  is  used  with  violence  upon  the 
person  of  another,  as  this  has  a  direct  tendency  to  destroy 
life,  or  do  some  great  bodily  harm  to  the  person  assailed, 


1  state  V.  Smith,  2  Strobh.  77  (1847). 
'  b  Cush.  316  (laSO). 


268  PRESUMPTIVE  EVIDENCE.        [rULE  65. 

the  intention  to  take  life  or  do  him  some  great  bodily  harm 
is  a  necessary  conclusion  from  the  act."  And  to  the  same 
effect  is  the  language  of  the  chief  justice  of  Pennsylvania : 
"  lie  who  uses  upon  the  body  of  another  at  some  vital  part, 
with  a  manifest  intention  to  use  it  upon  him,  a  deadly 
weapon,  as  an  ax,  a  gun,  a  knife,  or  a  pistol,  must  in  the 
absence  of  qualifying  facts  be  presumed  to  know  that  his 
blow  is  likely  to  kill;  and  knowing  this  must  be  presumed 
to  intend  the  death  which  is  the  probable  and  ordinary 
consequence  of  such  an  act."  ^ 

In  case  II.  it  was  said:  "  If  one  were  to  fire  a  loaded 
o-un  into  a  crowd,  or  throw  a  piece  of  heavy  timber  from 
the  top  of  a  house  into  a  street  filled  with  people,  the  law 
would  infer  malice  from  the  wickedness  of  the  act ;  so, 
also,  the  law  will  imply  that  the  prisoner  intended  the 
natural  and  probable  consequence  of  his  own  act,  as  in  the 
case  of  shooting  a  gun  into  a  crowd,  the  law  will  imply 
from  the  wantonness  of  the  act  that  he  intended  to  kill 
some  one,  though  it  might  have  been  done  in  sport.  If 
the  prisoner's  object  had  been  nothing  more  than  to  make 
Carter's  horse  throw  him,  and  he  had  used  such  means  only 
as  were  appropriate  to  that  end,  then  there  would  have 
been  some  reason  for  applying  to  his  case  the  distinc- 
tion. *  *  *  But  in  this  case  the  act  indicated  an 
intention  to  kill  —  it  was  calculated  to  produce  that  effect 
and  no  other  —  death  was  the  probable  consequence  and 
did  result  from  it. 

"  If  a  man  raises  his  rifle  and  deliberately  fires  its  con- 
tents into  the  bosom  of  another,,  or  by  a  blow  with  an  ax, 
which  might  fell  an  ox,  buries  it  into  the  brain  of  another, 
the  inference  from  the  act  is  irresistible  that  death  was 
meant,  and  so  the  law  presumes. 

"  The  inferences  of  the  mind,  which  are  equally  presump- 
tions of  law,  are  certain  and  conclusive  in  proportion  as  the 
acts,  from  their  nature  and  character,  are  certain  to  result 
in  death. 

1  Agncw,  C.  J.,  in  Com.  v.  Drum,  58  Pa.  St.  17  (1868). 


RULE    G5.]  THE   TRESUJIPTION   OF   INTENT.  2G9 

"Thus,  the  plunging  of  a  poign.'ird  into  the  heart  of 
another,  we  do  not  doubt,  was  intended  to  kill,  but  if  aimed 
only  at  the  arm  or  leg,  though  death  may  be  the  result,  yet 
the  mere  fact  of  giving  such  a  blow,  bo  long  as  that  is  the 
only  criterion  by  which  we  judge,  renders  the  intent  more 
doubtful  and  the  inference  less  strong.  So,  if  one  beat  a 
fulI-fT'rown  man  with  his  fist,  and  death  ensues,  wo  would 
ordinaiily  feel  far  more  doubt  that  death  was  intended 
than  if  it  had  been  produced  by  the  use  of  a  dangerous 
weapon.  So,  too,  regard  may  be  had  to  the  relative  strength 
and  powers  of  endurance  of  the  parties  as  well  as  to  the 
mode  in  which  the  violence  is  applied. 

"A  powerful  blow  given  by  the  fist  alone  (but  not  re- 
peated) upon  the  head  of  a  full-grown  man  v/ould  not 
ordinarily  be  regarded  as  intended  to  produce  death;  but 
what  else  could  be  inferred  if  the  same  blow  were  planted 
upon  the  temple  of  an  infant  child? 

"  In  many  cases  the  inference  that  death  is  intended  is 
as  strong  when  perpetrated  by  a  drunken  as  when  perpe- 
trated by  a  sober  man.  Thus,  if  by  a  deadly  weapon,  as 
by  a  rifle  or  a  bowie  knife,  a  bullet  or  blow  is  sent  directly 
or  designedly  to  some  vital  spot,  we  should  infer  that  death 
Was  intended  with  almost  equal  certainty,  whether  the  per- 
petrator were  drunk  or  sober.  So,  too,  when  death  is 
produced  by  poison,  and  we  see  in  the  mode  of  its  admin- 
istration stealthy  calculation,  we  would  infer  that  death 
(vas  intended,  whether  he  who  administers  the  poison  was 
in  a  state  of  sobriety  or  intoxication,  since  in  the  very 
character  of  the  act  we  could  read  design. 

♦'  But  we  also  know  that  intoxication  produces  more  effect 
upon  the  nervous  system  of  some  than  of  others.  It  clouds 
and  obscures  the  judgment  of  one  more  than  it  does  another. 
It  produces  greater  extravagance  of  exertion  and  action  in 
some  than  it  does  in  others,  and  sometimes  consequences 
result  from  such  extravagant  exertion  and  action  of  which 
the  party  himself  had  no  idea.     All  these  things  are  to  be 


270  PRESUMPTIVE   EYIDEXCE.  [llULE    G-i. 

considered  by  this  jury  in  determining  upon  this  question 
of  intent." 

The  rule  that  a  man  must  be  supposed  to  intend  the 
natural  results  of  his  act  is  said  by  Hubbard,  J.,  to  be  by 
no  means  an  infallible  proposition,  though  often  treated  as 
an  axiom.  "  The  result  is  not  always  evidence  of  the 
supposed  intent.  When  we  look  back  upon  events  that 
have  happened  we  stand  in  a  different  position,  we  behold 
with  a  clearer  vision,  as  we  embrace  within  our  glance  the 
beginning  and  the  end,  the  act  and  the  consequence.  But 
the  man  who  is  doing  the  act  may  contemplate  a  very 
different  result.  His  feelings  may  be  biassed  by  his 
wishes,  and  sanguine  feelings  may  be  the  cause  of  over- 
looking- difficulties  which  to  a  more  quiet  temperament 
might  appear  insurmountable.  Disappointments  also  may 
take  place  which  were  not  anticipated.^ 

"It  has  been  urged,"  said  Comstock,  J.,  in  Curtis  v. 
Leavitt,^  "that  the  debtor  corporation  must  be  deemed  to 
have  intended  the  result  of  its  own  acts.  This  is  very 
often  a  useful  rule  of  evidence  in  arriving  at  a  conclusion 
upon  a  question  of  motive  and  intention,  but  it  is  not  a 
rule  of  law.  If  a  given  result  must,  by  plain  and  absolute 
necessity,  follow  from  a  particular  action,  or  if  it  be  so 
likely  to  follow  that  no  two  minds  of  equal  intelligence 
could  differ  in  conclusion,  viewing  the  subject  from  the 
same  point  of  observation  as  the  actor  himself,  then  there 
would  be  no  injustice  in  holding  that  he  intended  such 
result.  Still,  the  question  is  one  of  fact ;  what  was  the 
intent?" 

And  in  Quinehaug  Bank  v.  Brewster,^  Sanford,  J.,  said  : 
*'  The  intention  of  a  party  is  a  fact  to  be  proved  as  all 
other  facts  are  proved,  not,  indeed,  necessarily  by  direct 
evidence  or  by  the  proof  of  other  facts  indicative  of  such 


I 


1  Jones  V.  Howland,  8  Mete.  30G  (1314). 
=  ].-)  X.  Y.  1  (18o7). 
3  30  Conn.  509  (1SC2). 


RULE    G6.]  THE   PRESUMPTION'   OF   INTENT.  271 

intention,  and  from  -u'liich  facts  its  actual  existence  and 
operation  may  be  inferred.  The  law  makes  no  conclusive 
presumption  in  regard  to  it.  Indeed,  the  law  never  con- 
clusively presumes  that  a  person  intended  to  violate  the 
law  or  commit  a  fraud.  The  act  done  and  the  circum- 
stances attending  its  commission  may  indicate  more  or  less 
clearly  the  intention  of  the  party  doing  it,  and  authorize 
an  inference  of  more  or  less  weight  in  rcirard  to  such 
intention." 


RULE  GO.  —  But  wlien  a  specific  intent  is  required  to 
make  an  act  an  offense,  tlie  doinj^  of  tlio  act  does  not 
raise  a  presumption  that  it  was  douo  with  tlie  spe- 
cific intent. 

Illustrations. 

I.  R.  is  charged  with  assaulting  with  intent  to  murder  one  E.  It  Is 
proved  that  R.  flred  a  loaded  pistol  at  E.  There  is  no  presumption  that 
E.  intended  to  murder  E.^ 

II.  A  statute  makes  a  willful,  deliberate  and  premeditated  killing 
murdiT  in  the  first  degree.  B.  kills  C.  There  is  no  presumption  that 
the  killing  was  deliberate  and  premeditated.' 

In  case  I.  it  was  said  :  *'  The  general  rule  is  well  settled, 
to  which  their  are  few  if  any  exceptions,  that  when  a  statute 
makes  an  offense  to  consist  of  an  act  combined  with  a  par- 
ticular intent,  that  intent  is  just  as  necessary  to  be  proved 
as  the  act  itself  and  must  be  found  by  the  jury,  as  matter 
of  fact,  before  a  conviction  can  be  had.  But  especially 
v/hen  the  offense  created  by  the  statute,  consisting  of  the 
act  and  the  intent,  constitutes  as  in  the  present  case,  sub- 
stantially an  attempt  to  commit  some  higher  offense  than 
that  which  the  defendant  has  succeeded  in  accomplishing 
by  it,  wo  arc  aware  of  no  well  founded  exceptions  to  the 
rule  above  stated,  and  in  all  such  cases  the  particular  intent 


1  Roberts  V.  reoplc,  19  Mich.  401  (1^70) ;  Mnyhcr  r.  People,  10  7rf.  212  (18C2). 

3  Com.  f.  Drum,  58  Pa.  St.  9  (ISTP)  ;  St.Tlc  r.  ^rilche^,  f4  Xo.  101  (1876) ;  Stnte  v. 
Foster,  Gl  Id.  549  (187G) ;  State  v.  Luiie,  04  Id.  319  (1876) ;  Ilamby  v.  State,  36  Texaa, 
623  (1S72). 


272  PRESuaiPTivE  evidence.  [rule  G7. 

must  be  proved  to  the  satisfaction  of  tlie  jury  ;  and  no 
intent  in  law  or  mere  legal  presumption  differing  from  the 
intent  in  fact,  can  be  allowed  to  supply  the  place  of  the 
latter." 

RULE  G7.  —  The  law  presumes  an  Intent  from  acts  in 
the  absence  of  dcclarations(A)  where  the  party  is 
phj'sically  and  mentally  capable  of  forming  an  in- 
tent (B. ) 

Illustrations. 

A. 

I.  The  question  is  whether  a  certain  incumbrance  was  intended  to  be 
excepted  from  a  covenant  against  incumbrances  in  a  deed.  It  appears 
that  the  incumbrance  in  question  was  notorious  and  of  long  standing, 
and  no  mention  of  it  was  made  in  the  deed.  The  presumption  is  that  it 
was  intended  to  be  excepted.^ 

II.  In  case  I.  it  appeared  that  nothing  was  said  by  the  parties  in  ref- 
erence to  the  incumbrance.  The  presumption  of  an  intention  not  to  ex- 
cept it  is  not  raised  from  this  fact  alone. 2 

In  case  I.  it  was  said :  "  From  the  existence  and  notoriety 
of  the  incumbrance,  its  long  standing  and  the  long  acquain- 
tance of  the  parties  with  it  as  a  permanent  thing,  the  fact 
that  no  mention  was  made  of  it  in  the  negotiation,  though 
other  incumbrances  were  mentioned  in  the  deed  and 
excepted,  the  committee  drew  the  inference  that  it  was  the 
intention  of  the  parties  that  it  should  be  excepted  from  the 
deed.  *  *  *  The  argument  in  favor  of  the  finding  of 
the  committee  is  very  strong.  An  express  warranty  on  the 
sale  of  personal  chattels  does  not  apply  to  visible  defects, 
because  the  fact  that  the  defect  was  plainly  visible  is  evi- 
dence that  the  purchaser  knew  it,  and  did  not  take  his 
warranty  on  account  of  it.  This  principle  does  not  apply  in 
the  case  of  a  warranty  by  deed,  because  the  terms  of  a  deed 
can  not  be  contradicted  or  varied  by  parol,  and  undoubtedly 
a  man  may,  if  he  will  be   so   foolhardy,  make  an  express 

1  Knai.p  V.  White,  23  Conn.  529  (1855).  "  Id. 


KULE  G7.]     THE  rRESUMTTION  OF  INTENT.  273 

warrant}'  in  a  deed,  ^Yhere  he  kncws  that  it  is  broken  at  the 
moment  the  deed  is  delivered,  and  knows  also  that  the  fact 
is  well  known  to  the  party  to  whom  he  ^rives  it.  But 
ordinarily  wc  suppose  that  parties  do  not  in  this  open 
way  intentionally  involve  themselves  in  lawsuits.  And  wc 
do  not  see  why  the  phiin,  o})en,  visible,  and  notorious 
character  of  this  incumbrance,  connected  as  it  was  with  full 
knowledge  of  the  parties  of  its  existence,  does  not  furnish 
evidence  that  it  was  not  intended  by  the  parties  to  bo  war- 
ranted against,  upon  a  principle  analogous  to  that  which 
applies  to  visible  defects  in  the  sale  of  personal  chattels  by 
parol." 

In  case  II.  it  was  said  :  "  The  defendant's  counsel  seem 
to  suppose  that  there  could  have  been  no  intention  to  except 
the  right  to  maintain  the  ditch  from  the  deed,  because  the 
l^arties  said  nothing  about  it.  But  courts  will  often  found 
decisions  and  judgments  upon  the  presumed  intention  of 
the  parties  where  nothing  has  been  said.  A  man  is  pre- 
sumed to  intend  the  natural  and  probable  consequence  of 
what  he  does :  and  on  the  principle  many  persons  have  been 
found  guilty  of  the  highest  crimes.  A  man  is  presumed  to 
accept  of  a  conveyance  of  property  made  to  him,  on  the 
ground  that  it  being  for  his  benefit  he  would  naturally  wish 
to  receive  it ;  and  on  this  principle  titles  have  been  estab- 
lished. Indeed  we  always  draw  inferences  from  our 
observation  of  the  usual  habits  of  men  which  lead  to  a  great 
variety  of  presumptions.  These  inferences  are  the  conclu- 
sions drawn  by  reason  and  common  sense  from  premises 
established  by  proof ;  and  arc  as  applicable  to  questions  of 
intention  where  the  intention  of  parties  becomes  important 
as  to  any  other  disputable  fact.  It  is  true,  as  remarked  by 
Judge  Story,  that  if  the  proofs  are  doubtful  and  unsatisfac- 
tory', and  the  mistake  is  not  made  entirely  plain,  equity  will 
withhold  relief  on  the  ground  that  the  written  paper  ought 
to  be  treated  as  a  full  and  correct  expression  of  the  intent, 
until  the  contrary  is  established  beyond  reasonable 
18 


274  niESOirTivE  evidence.  [rule  G7. 

controversy.  But  this  docs  not  mean  that  there  must 
ahvavs  exist  direct  and  positive  proof  that  the  instrument 
does  not  express  the  true  intent  of  the  parties  in  order  to 
justify  the  court  in  reforming  it.  To  give  any  such  con- 
struction to  the  rule  would  be  to  deny  any  right  in  a  court 
'of  equity  to  interfere  unless  the  instrument  could  be  shown 
to  vary  from  written  memoranda  of  the  terms  of  the 
contract  from  which  it  is  drawn  up,  or  some  evidence 
equally  decisive.     We  do  not  so  understand  the  rule." 

B. 

I.  A.  is  indicted  for  burglary.  It  is  proved  that  A.  broke  and  entered 
a  store  in  the  night-time.  The  presumption  is  that  A.  intended  to  com- 
mit a  burglary.  A.  shows  that  he  was  at  the  time  too  drunk  to  have 
entertained  such  an  intent.    The  presumption  of  intent  no  longer  arises.^ 

II.  K.  is  indicted  for  shooting  at  S.  with  intent  to  kill  him.  R.  shot  at 
S.  while  in  a  state  of  intoxication.  The  guilt  of  R.  turns  on  the  question 
whether  R.  was  in  such  a  state  of  mind  as  to  be  able  to  form  an  intent.^ 

In  case  II.  Coleridge.  J.,  said:  "  There  are  two  points  for 
your  consideration,  first,  as  to  the  act ;  second,  as  to  the 
intent.  With  regard  to  the  latter,  the  allegation  respecting 
it  in  the  indictment  must,  no  doubt,  be  proved  to  your 
satisfaction  before  you  can  find  the  prisoner  guilty  upon  the 
full  charge.  The  inquiry  as  to  intent  is  far  less  simple 
than  that  as  to  whether  an  act  has  been  committed,  because 
you  can  not  look  into  a  man's  mind  to  see  what  was  passing 
there  at  any  given  time.  What  he  intends  can  only  be 
judged  of  by  what  he  does  or  says,  and  if  he  says  nothing 
then  his  acts  alone  must  guide  you  to  your  decision.  It  is 
a  sreneral  rule  in  criminal  law,  and  one  founded  on  common 
sense,  that  juries  are  to  persume  a  man  to  do  what  is  the 
natural  consequence  of  his  act.     The  consequence  is  some- 

1  Ingalls  V.  state,  48  Wis.  647  (1870) ;  Wood  v.  State,  34  Ark.  341  (1870) ;  Koberts  ». 
People,  19  Mich.  401  (1870) ;  State  v.  Bell,  29  Iowa,  3ir,  (1870) ;  Stale  v.  Maxwell,  42  Id. 
208  (1875) ;  Wenz  v.  State,  1  Tex.  App.  36  (187G)  ;  Loza  v.  State,  Id.  488  (1877) ;  U.  S. 
V.  Kowen,  4  Cranch  C.  C.  604  (1835) ;  State  v.  Coleman,  27  La.  Ann.  691  (1875) ;  State 
V.  Trivas,  32  Id.  1086;  3G  Am.  Rep.  293  (1880). 

2  It.  V.  Monkhouse,  4  Cox,  55. 


RULE    G7,]  THE   PRESUMPTIOX    OF   INTENT.  275 

times  so  apparent  as  to  leave  no  dou])t  of  the  intention.  A 
man  could  not  put  a  pistol  while  he  knew  it  to  be  loaded,  to 
another's  head  and  fire  it  off  without  intending  to  kill  him; 
Init  even  then  the  state  of  mind  of  the  party  is  most  natural 
to  be  considered.  For  instance,  if  such  an  act  will  be 
done  by  a  born  idiot,  the  intent  to  kill  could  not  bo  inferred 
from  the  act.  So  if  the  defendant  is  proved  to  have  been 
intoxicated,  the  question  becomes  a  more  subtle  one  ;  but 
it  is  of  the  same  kind,  namely,  was  he  rendered  by  intoxi- 
cation entirely  incapable  of  forminf^  the  intent  charged? 
The  case  cited  is  one  of  great  authority  from  the  eminence 
of  the  judge  who  decided  it.  The  only  difficulty  is  in 
knowing  whether  we  get  the  exact  words  of  the  judge 
from  the  case  quoted,  and  even  if  we  do  whether  all  the 
facts  are  stated  which  induce  him  to  lay  down  the  particular 
rule.  Although  I  agree  with  the  substance  of  what  my 
brother  Patteson  is  reported  to  have  said,^  I  am  not  so 
clear  as  to  the  propriety  of  adopting  the  very  words.  If 
ho  said  that  the  jury  could  not  find  the  intent  without 
being  satisfied  it  existed,  I  shall  so  lay  it  down  to  you  ; 
the  only  difference  between  us  is  as  to  the  amount  and  nature 
of  the  proof  sufficient  to  justify  you  in  coming  to  such  a 
conclusion,  Under  such  circumstances  as  these  when  the 
act  is  unambiguous,  if  the  defendant  was  sober,  I  should 
have  no  difficulty  in  directing  you  that  he  had  the  intent  to 
take  away  life,  when  if  death  had  ensued  the  crime  would 
have  been  murder.  Drunkenness  is  ordinarily  neither  a 
defense  nor  excuse  for  crime  and  where  it  is  available  as  a 
partial  answer  to  a  charge  it  rests  on  the  prisoner  to  prove 
it,  and  it  is  not  enough  that  he  was  excited  or  rendered 
more  irritable,  unless  the  intoxication  was  such  as  to  pre- 
vent him  from  restraining  himself  from  coramittino^  the 
action  in  question,  or  to  take  away  from  him  the  power  of 
•forming  any  specific  intention.  Such  a  state  of  drunken- 
ness may  no  doubt  exist." 

^  R.  V.  Cruise,  S  C.  A  P.  548. 


276  rRESUMPTIVE   EVIDENCE.  [rULE    68. 

RULE  CS.  — A  person  is  presumed  to  intend  to  do  what 
is  within  his  right  and  power  rather  than  what  is 
beyond  them. 

Illustrations. 

I.  A.,  B.  &  C.  were  the  devisees  of  an  estate  for  life  to  become  one  in 
fee;  on  tlie  deatli  of  D.  they  made  a  division  of  the  estate.  The  question 
was  whether  they  had  divided  the  life  estate  or  the  estate  in  fee.  Held, 
that  the  presumption  was  the  former.^ 

II.  A  lease  of  dwelling  houses  contains  a  covenant  on  the  part  of  the 
lessee  that  he  will  not,  without  the  consent  of  the  lessor,  carry  on  any 
trade  in  any  house.  He  afterwards  converts  one  of  them  into  a  public 
house  aud  grocery,  and  the  lessor,  with  knowledge  of  it,  receives  the  rent 
for  more  than  twenty  years.  The  presumption  is  that  the  lessor  has 
licensed  this  use.' 

III.  An  action  is  brought  on  a  contract  for  goods  sold.  The  goods  are 
proved  to  be  liquors.  The  presumption  is  that  the  plaintiff  was  duly 
licensed  to  sell  them.' 

IV.  A  person  makes  a  deed  of  land.  The  presumption  is  that  he  was 
seized  of  the  laud  at  the  time.* 

V.  E.  gives  to  L.  an  order  on  J.,  his  debtor,  for  a  sum  less  than  the 
debt;  he  also  gives  to  F.  an  order  on  J.  for  the  whole  sum  due  from  J.  to 
R.  F.'s  order  being  lost,  the  question  is  which  was  given  first.  The  pre- 
sumption is  that  the  order  in  favor  of  L.  was.* 

VI.  It  is  alleged  that  certain  goods  were  sold  contrary  to  law.  The 
burden  of  proving  that  the  sale  was  in  violation  of  law  is  on  the  party 
alleging  it.« 

VII.  A  statute  allows  ten  per  cent  interest  to  be  reserved  only  in  the 
case  of  money  loaned.  A  contract  provides  for  the  payment  of  ten  per 
cent  interest  without  showing  the  consideration.  The  presumption  is 
that  it  was  money  loaned.' 

VIII.  The  question  is  whether  A.  has  committed  a  certain  act.  The 
doing  of  the  act  renders  A.  liable  to  a  penalty.  That  A.  has  done  an  act 
involving  a  penalty  will  not  be  presumed.^ 


1  Pool  V.  Morris,  29  Ga.  395  (1859). 

2  Gibson  v.  Doeg,  2  H.  &  N.  G15  (1857). 

3  lloran  v.  Weiler,  41  Pa.  St.  470  (18C2), 
*  Bolster  V.  Cushman,  34  Mc.  428  (18.')2). 

6  James  River,  etc., Co.  v.  Littlejohn,  ISGratt.  53  (1867) ;  Littlejohn  v.  Ferguson,  /d 

e  Trott  V.  Irish,  1  Allen,  481  (18G1) ;  llewcs  v.  Platls,  12  Gray,  143  (1858) ,  Stebbms 
V.  Leowolf,  1  Cush.  137  (1840) ;  Kidder  v.  Xorns,  18  N.  II.  532  (1847). 

'  Sutphen  t;.  Cushman,  35  111.  187  (1864). 

8  Sidney  v.  Sidney,  3  P.  Wms.  270  (1734) ;  Clark  v.  Perriam,  3  P.  Wms.  334  (1741) ; 
Scholes  V.  Hilton,  10  M.  &  W.  15  (1842). 


RULE  G8.]     THE  rnESUMPTION  OF  INTENT.  277 

IX.  A.  sues  B.  for  his  services  as  B.'s  bar-keeper.  There  is  no  proof 
whether  B.  is  a  legal  seller  of  liquor,  i.e.,  has  a  license.  The  presump- 
tion is  that  he  has.* 

X.  A.  is  sued  for  destroj'inf;  certain  dwelling  houses.  In  mitigation 
of  damages  ho  offers  to  prove  that  the  houses  were  houses  of  ill-fanio 
and  could  not  have  been  rented  for  any  other  purpose  —  honest  people 
would  not  live  in  them.  The  evidence  is  inadmissible;  for  the  law  can 
not  presume  that  future  tenants  will  violate  the  law.' 

XI.  In  an  action  by  A.  against  B.,  A.  alleged  that  B.,  who  had  char- 
tered his  ship,  had  put  on  board  a  dangerous  commodity  by  which  a  loss 
happened,  without  due  notice  to  the  captain,  or  any  other  i)erson  employed 
in  the  navigation;  the  burden  of  proving  that  B.  did  not  give  the  notice 
was  on  A.* 

XII.  A  railroad  company  is  authorized  to  construct  a  railroad  in  a 
public  street,  with  necessary  switches  and  turn-outs;  it  malces  certain 
switches,  which  it  is  alleged  are  a  nuisance.  The  presumption  is  that 
they  are  necessary,  and  the  burden  is  on  the  one  complaining  of  the 
nuisance.* 

**  It  is  a  natural  presumption,"  it  was  said  in  ca,se  I., 
'♦  that  men  intend  to  do  that  which  they  have  a  right  and 
power  to  do  rather  than  what  is  beyond  their  right  or 
power.  *  *  *  The  division  was  of  course  meant  to  be 
a  complete  one  of  whatever  was  divided  unless  the  contrary 
appears.  The  life  estate  could  have  been  completely 
divided  at  that  time,  nothing  else  being  necessary  to  render 
it  perfect,  but  the  remainder  could  not  have  been  so 
divided  at  that  time,  for  that  division  could  not  have  been 
completed  till  the  death  of  D.  *  *  *  This  presumption 
must  prevail  until  rebutted  by  affirmative  contrary  evi- 
dence." 

*'  It  is  a  maxim  of  the  law  of  England,"  it  was  said  in 
case  II.  *'  to  give  effect  to  everything  which  appears  to 
have  been  established  for  a  considerable  lenirth  of  time, 
and  to  presume  that  what  has  been  done  was  done  of  rio-ht 
and  not  in  wrong.  That  practically  has  caused  a  scries  of 
trespasses  to  constitute  a  right  so  that  it  may  be  said,  a  right 

1  Timson  r.  Moulton,  3  Gush.  2G9  (1849). 

a  Jolmsou  I'.  Farwcll,  7  Me.  370  (1831). 

8  Williams  f.  East  India  Co.,  3  East,  104  (1S02). 

*  Carsou  v.  Ceutial  li.  Co.,  35  Cal.  325  (1608). 


278  PRESUMPTIVE  EVIDENCE.        [rULE  68. 

has  o-rown  out  of  proceedings  which  are  wronf2;fuI.  But  in 
truth  it  is  nothing  more  than  giving  effect  to  notorious  and 
avowed  acquiescence.  No  person  would  have  permitted  a 
covenant  to  be  broken  for  more  than  twenty  years,  unless 
he  was  aware  that  it  was  broken  as  a  matter  of  right.  It  is 
not  necessary  in  point  of  form  to  send  the  case  to  a  jury 
to  find  the  facts  which  the  judge  may  tell  them  they  ought 
to  presume." 

In  case  V.  it  was  said:  "  In  the  absence  of  any  evidence 
on  the  subject  the  presumption  must  be  that  L.'s  order  was 
given  first.  For  it  would  have  been  an  act  of  folly  as  well 
as  a  fraud  in  R.  to  give  L.  an  order  for  the  amount  of  his 
debt  when  he  had  already  given  F.  an  order  for  the  whole 
balance  due  him  from  the  company.  The  court  will  not 
presume  this,  in  the  absence  of  all  evidence,  but  will  pre- 
sume the  contrary." 

It  was  argued  in  case  XII.,  that  to  compel  A.  to  prove 
the  want  of  notice  was  compelling  him  to  prove  a  negative 
which  in  a  civil  action  at  least  was  against  the  general  rules 
of  evidence.  But  Lord  Ellenborough  said;  <'That  the 
declaration  in  imputing  to  the  defendants  the  having  wrong- 
fully put  on  board  a  ship  without  notice  to  those  concerned 
in  the  management  of  the  ship,  an  article  of  a  highly  dan- 
gerous, combustible  nature,  imputes  to  the  defendants  a 
criminal  negligence,  can  not  well  be  questioned.  In  order 
to  make  the  putting  on  board  wrongful  the  defendants  must 
be  cognizant  of  the  dangerous  quality  of  the  article  put  on 
board,  and  if  being  so,  they  yet  gave  no  notice  considering 
the  probable  danger  thereby  occasioned  to  the  lives  of  those 
on  board,  it  amounts  to  a  species  of  delinquency  in  the  per- 
sons concerned  in  so  putting  such  dangerous  article  on 
board  for  which  they  are  criminally  liable  and  punishable 
as  for  a  misdemeanor  at  least.  We  are,  therefore,  of  opin- 
ion, upon  principle  and  the  authorities,  that  the  burden  of 
proving  that  the  dangerous  article  in  question  was  put  on 
board  without  notice  rested  upon  the  plaintiff's  alleging  it 
to  have  been  w^rongfuliy  put  on  board  without  notice  of  its 
nature  and  qualit}'." 


CHAPTEE    XIY. 

THE  PRESUMPTIONS  FROM  THE  COURSE  OF  NATURE. 

KUL.E  GO.  —  The  law  presumes  that  in  a  particular  case 
the  regular  course  of  nature  applied  or  was  followed. 

lUustratiojis. 

I.  A.  is  charged  with  a  crime.  It  Is  shown  that  A.  at  the  time  it  was 
committed  was  under  fourteen  years  of  age.  The  presumption  is  that 
A.  was  incapable  of  committLng  the  crime. ^ 

II.  A  crime  is  committed  by  a  woman  in  the  presence  of  her  husband. 
The  presumption  is  that  it  was  doue  under  his  coercion.^ 

III.  A  wife  commits  a  tort  In  the  presence  of  her  husband.  The  pre- 
sumption is  that  she  acted  under  coercion  of  the  husband,  and  she  is  not 
liable.' 

IV.  A  statement  is  proved  to  have  been  made  in  the  presence  of  II. 
It  will  be  presumed  that  H.  heard  it.* 

V.  A  Avife  who  lives  on  her  own  premises,  and  has  children  by  a  former 
husband,  living  with  her,  claims  certain  property  as  "head  of  a  family." 
The  presumption  is  that  the  husband  is  the  "head  of  the  family"  and 
the  wife  can  not  recover.* 

VI.  A  deed  of  gift  of  property  to  a  married  woman  is  proved  to  have 
been  made,  and  the  question  is  where  is  it?  The  presumption  is  that  it 
is  in  the  possession  and  custody  of  her  husband.^ 

VII.  Money  is  advanced  by  a  parent  to  his  child.  The  presumption  is 
that  this  is  done  as  a  gift  and  not  as  a  loan.' 


1  R.  t'.  Owen,  4  C.  &  P.  236;  Queen  v.  Smith,  1  Cox  C.  C.  260;  Com.  v.  Mead,  10 
Allen,  o9S;  People  v.  Davis,  1  Wheeler,  230;  Walker's  Case,  5  City  Uall  Kec.  137; 
Dove  r.  State,  .'57  Ark.  2(;2  (1S<>1). 

2  Com.  f.  NOal,  10  Mass.  152  (1S13) ;  R.  v.  Knight,  3  C.  *  P.  116;  R.  r.  Conolly,  2 
Lewin,220;  R.  r.  Price,  8  C.  &  P.  ]'.»;  R.  i:  Archer,  1  Moody,  14.>;  R.  v.  Matthews,  1 
Den.  C.  C.  540;  Frcel  v.  .State,  21  Ark.  212  (ISCO).  P.ut  statements  made  by  a  married 
woman  where  the  boundary  between  her  land  and  her  husband's  is,  are  not  jire- 
Bumcd  after  her  decease  to  have  been  made  under  coercion  by  him.  Pike  v.  llayes, 
UN.  II.  19  (1S43). 

8  Marshall  v.  Cakes.  51  Me.  309  (1S64). 

*  Ilochrieter  v.  People,  2  Abb.  App.  Dec.  303  (1864) ;  aUter,  of  course,  were  he 
unconscious  from  sleep  or  stupor.    Lanergaa  f.  People,  3'J  X.  Y.  41  (IStJS). 

6  Clinton  v.  Kidwell,  S2  111.  427  (1S76). 

•  McLain  v.  Winchester,  17  Mo.  4.1  (1852). 
'  Uicks  V.  Keats,  4  B.  &  C.  71  (ia25). 

(  270  ) 


280  PRESUMPTIVE   EVIDENCE.  [itULE    G9. 

VIII.  A  husband  buys  a  piece  of  laud  and  convoys  it  to  his  wife. 
Afterwards  he  makes  improvements  on  it  at  his  own  expense.  This  will 
be  presumed  to  be  a  gift  to  the  wife.i 

IX.  A  husband  and  wife  are  living  together.  The  wife  purchases  cer- 
tain articles  for  the  house.  The  presumption  is  that  this  was  done  by  his 
direction. 2 

X.  In  a  civil  or  criminal  case,  as  it  may  be,  the  question  arises  whether 
a  party  or  a  prisoner  or  a  witness,  or  any  person  in  fact,  is  sane.  The 
presumption  is  that  he  is  sane,  and  the  burden  of  proof  is  on  the  party 
alleging  insanity  .^ 

In  case  I.  Littleclale,  J.,  said  to  the  jury:  "  The  prisoner 
is  only  ten  years  of  age,  and  unless  you  are  satisfied  by  the 
evidence  that  in  committing  this  oflense  she  knew  she  was 
doing  wrong,  you  ought  to  acquit  her.  Whenever  a  person 
committing  a  felony  is  under  fourteen  years  of  age,  the 
presumption  of  law  is  that  he  or  she  has  not  sufficient  capac- 
ity to  know  that  it  is  wrong,  and  such  person  ought  not 
to  be  convicted,  unless  there  be  evidence  to  satisfy  the  jury 
that  the  party  at  the  time  of  the  offense  had  a  guilty  knowl- 
edge that  he  or  she  was  doing  wrong."  And  in  the  case 
next  cited  Erie,  J.,  said  :  "  Where  a  child  is  under  the  age 
of  seven  years,  the  law  presumes  him  incapable  of  commit- 
ting a  crime  after  the  age  of  fourteen  ho  is  presumed  to 
be  respon.sible  for  his  actions  as  entirely  as  if  he  were 
forty  ;  but  between  the  ages  of  seven  and  fourteen  *  *  * 
guilty  knowledge  must  be  proved  by  the  evidence  and  can 
not  be  presumed  from  the  mere  commission  of  the  act." 


1  Ward  V.  Ward,  36  Ark.  586  (18S0). 

2  Lane  v.  Ironmonger,  13  M.  &  W.  368;  Pickering  v.  Pickering,  6  N.  II.  124;  StaU 
V.  Meek,  70  Pa.  St.  181 ;  Felker  v.  Emerson,  16  Vt.  053;  Pliillipson  v.  Ilayter,  L.  R.  6 
C.  P.  38;  Morgan  v.  Clietwynd,  4  F.  &  F.  451;  Freestone  v.  Butcher,  9  C.  &  P.  047. 

8  U.  S.  V.  Lawrence,  4  Cranch  C.  C.  514  (1S35) ;  U.  S.  v.  McGlue,  1  Curt.  1  (1851) ; 
Burton  f.  Scott,  3  Rand.  389  (1825) ;  Tliornton  v.  Appleton,  29  Me.  300  (1849) ;  Cordrcy 
V.  Cordrey,  1  Iloust.  (Del.)  2G9  (1855) ;  Stubbs  v.  Houston,  .33  Ala.  5."')5  (1S59) ;  Lilly  v. 
Waggoner,  27  111.  395  (I-iG2);  State  v.  Pike,  49  N.  II.  399  (187»).  In  Mill  contests  ia 
Massachusetts  there  is  said  to  be  no  presumption  of  the  sanity  of  a  testator,  but  the 
person  ofTering  the  will  for  probate  muf:t  jirove  it.  Crowninsbield  v.  Cronwinthield, 
2  Gray,  524  (1854) ;  Creed  v.  Pratt,  18  Pick.  115  (1836) ;  Phelps  v.  Ilartwell,  1  M.-'ss.  71 
(1804) ;  Blaney  r.  Sergeant,  I  Mass.  335  (1S05).  Where  the  attesting  witnesses  tc  a 
deed  are  dead  there  is  no  presumption  that  if  living  they  would  testify  that  the 
grantor  was  of  sane  mind  at  the  time  of  the  delivery  of  the  deed.  Flanders  v.  Davis, 
19N.  U.  139  (1848). 


RULE  CO.]   PKESUMmOXS  FHOM  COURSE  OF  NATURE.     281 

In  R.  V.  Smith,^  a  boy  of  ten  years  of  age  was  indicted 
for  setting  fire  to  a  hay  rick.  There  was  no  evidence  of 
any  malicious  intention.  Early,  J.  (to  the  jury)  :  *'  Where 
the  child  is  under  the  age  of  seven  3'ears,  the  law  presumes 
him  to  be  incapable  of  committing  a  crime;  after  tiie  ago 
of  fourteen,  h^  is  presumed  to  be  responsible  for  his  actions 
as  entirely  as  if  he  were  forty,  but  between  the  age  of  seven 
and  fourteen,  no  presumption  of  law  arises  at  all  and 
that  which  is  termed  a  malicious  intent  —  a  guilty  knowledge 
that  he  was  doing  wrong  —  must  be  proved  by  the  evidence, 
and  can  not  be  presumed  from  the  mere  commission  of  the 
act.  You  are  to  determine  from  a  review  of  the  evidence 
whether  it  is  satisfactorily  proved  that  at  the  time  he  fired 
the  rick  (if  you  should  be  of  opinion  he  did  fire  it)  he  had 
a  guilty  knowledge  that  he  was  committing  a  crime."  The 
prisoner  was  acquitted. 

In  Walkei-'s  Case  ^  the  prisoner,  a  boy,  was  indicted  for 
petty  larceny  in  stealing  ten  pounds  of  copper  bolts.  It  ap- 
peared that  after  stealing  them  he  had  carried  them  to  a 
store  and  sold  them.  The  mother  of  the  boy,  being  sworn 
in  his  favor,  testified  that  he  was  but  a  few  weeks  more  than 
seven  years  of  age,  and  that  in  consequence  of  falling  on 
his  head  his  senses  were  impaired.  No  evidence  was  offered 
on  the  part  of  the  prosecution  to  show  his  capacity.  The 
court  charged  the  jury  that  as  a  child  of  seven  was  held  in- 
capable of  crime,  and  between  that  age  and  fourteen  it  was 
necessary  to  show  his  capacity,  and  that  in  proportion  as 
he  approached  to  seven  the  inference  in  his  favor  was  the 
greater,  and  as  he  approached  to  fourteen  the  less,  there 
was  not  sufficient  evidence  in  the  case  to  support  the  pro- 
secution, especially  as  strong  evidence  of  incapacity  had 
been  produced  on  his  part. 

In  People  v.  ToicnsencP  a  number  of  defendants  were 
indicted  for  permitting  a  nuisance  on  their  lands.  On  ap- 
peal Bronson,  J.,  said:  "Although  one  object  of  the  prose- 
cution may  be  the  abatement  of  the  nuisance  there  may 

1  1  Cox,  2G0  (1S45).  ;  5 City  Uall  Uec.  137.  »  3  Ulll,  4S1  (lS-12). 


282  PRESUMPTIVE   EVIDENCE.  [RULE    69. 

also  be  a  judgment  of  fine  and  imprisonment  against  the 
defendants.  They  must,  therefore,  be  tried  on  the  same 
principles  which  would  govern  if  they  were  charged  v/ith 
any  other  misdemeanor.  The  case  does  not  state  the  ages 
of  the  infant  defendants,  but  if,  as  was  suggested  in  the 
argument,  some  of  them  are  only  a  year  or  two  old,  they 
are  not  doli  cajxix,  and  could  not  rightfully  be  convicted  of 
any  offense." 

In  C ommomoealth  v.  Mead^  the  defendant,  Mary  Mead, 
was  indicted  for  selling  intoxicating  liquors.  It  was  proved 
at  the  trial  that  she  was  a  daughter  of  Eliza  Mead,  and  at 
the  time  of  said  sales  was  under  twelve  years  of  age,  living 
with  her  parents,  and  that  the  sales  were  made  by  her  in  the 
dwelling  house  of  her  parents,  and  under  and  by  direction 
of  her  mother,  to  Avhom  the  liquors  belonged.  The  defend- 
ant also  put  in  evidence  a  license  granted  to  her  mother  to 
sell  liquors  under  the  internal  revenue  acts  of  the  United 
States.  The  defendant  requested  the  court  to  instruct  the 
jury  that  if  she,  at  the  time  of  making  the  sales,  was  under 
twelve  years  of  age,  and  if  the  sales  were  made  under  the 
general  direction  of  the  mother,  in  the  dwelling  house  of 
the  parents  of  the  defendant,  then  she  could  not  be  con- 
victed under  this  indictment.  The  judge  declined  so  to  rule, 
and  instructed  the  jury  that  the  license  was  no  defense,  if 
the  sales  w^ere  made  in  violation  of  the  statutes  of  Massa- 
chusetts; and  that  if  the  defendant  did,  in  the  dwelling 
house  of  her  parents,  and  while  she  lived  with  them,  and  by 
direction  of  her  mother,  and  while  under  twelve  years  of 
age,  make  three  or  more  separate  sales  of  the  liquor  they 
should  find  for  guilty.  This  instruction  on  appeal  was 
reversed,  Bigelow,  C.  J.,  saying:  "  The  question  of  the 
legal  competency  of  the  defendant  to  commit  the  offense 
charged  in  the  indictment  was  distinctly  raised  in  the 
present  case  by  the  fact  proved  at  the  trial  that  she  was 
under  twelve  years  of  age.  The  rule  of  the  common  law 
is  perfectly  well  settled,   that   a  child  between  the  ages 

1  10  Allen,  308  (ISCS"), 


RULE    CO.]      PIIESUMPTIOXS  FROM  COURSE  OF  NATUKE.  283 

of  seven  and  fourteen  is  not  presumed  to  be  doU  capax,  and 
the  question  whether,  in  committing  an  oflense,  such  child 
in  fact  acted  with  intellii^enco  and  capacity,  and  an  under- 
standinij  of  the  unhuvful  character  of  the  act  charirod,  is  to 
be  determined  hy  the  jury  upon  the  evidence,  and  in  view 
of  all  the  circumstances  attending  the  alleged  criminal  trans- 
action.^ This  rule  is  uniformly  applied  when  children 
under  fourteen  and  above  seven  years  of  ajre  arc  charn^cd 
with  murder  or  other  felonies.  A  fortiori^  it  is  applicable 
where  they  are  accused  of  lesser  offenses,  or  with  the  com- 
mission of  acts  coming  within  the  the  class  of  mala  pt'ohibUa. 
These  do  not  so  violently  shock  the  natural  moral  sense  or 
instinct  of  children,  and  Avould  not  bo  so  readily  recognized 
and  understood  b}''  them  to  be  wrong,  or  a  violation  of  duty, 
as  the  higher  crimes  of  murder,  arson,  larceny,  and  the  like. 
Although  the  attention  of  the  judge  at  the  trial  was  drawn 
to  the  fact  that  the  defendant  was  of  tender  years,  so  that 
no  presumption  of  legal  capacity  to  commit  crime  existed, 
he  wholly  omitted  to  give  any  instructions  from  which  the 
jury  could  be  led  to  infer  that  it  was  their  duty  to  find  that 
the  defendant  knew  the  unlawful  character  of  the  act  with 
which  she  was  charged,  before  they  could  render  a  verdict 
of  guilty  against  her.  For  aught  that  we  can  see,  the  ver- 
dict was  rendered  without  any  consideration  of  the  legal 
competency  of  the  defendant  to  commit  the  offense  alleged 
in  the  indictment.  The  case  was  one  which  seems  to  us  to 
have  required  an  explicit  instruction  on  this  point.  It  is 
true  that  it  Avas  not  necessary  to  show  actual  knowledge  by 
the  defendant  of  the  unlawfulness  of  the  act,  if  suflicicnt 
legal  capacity  to  commit  crime  was  otherwise  provi-d.  If 
cai)acily  is  established,  knowledge  may  be  presumed.  Xor 
is  it  necessary  to  offer  direct  evidence  of  capacity.  It  may 
be  inferred  from  the  circumstances  under  which  the  offense 
was  committed.  But,  nevertheless,  it  is  to  be  established 
as  a  distinct  fact.     "We  are  unable  to  see  anything  in  the 

1  1  Hale  P.  C.  2-2-27;  1  Archb.  Crim.  Tx.  10;  1  Russ.  on  Crimes  (Tlh  Am.  ciL),!; 
Rex  V.  Owcu,  4  C.  &  P.  2J6. 


284  PRESUJiIPTIVE   EVIDENCE.  [rULE    69. 

facts  set  out  in  the  exceptions  -which  tend  to  prove  that  the 
defendant  was  cognizant  of  the  illegal  character  of  the  act 
vrhich  she  committed.  She  seems  to  have  made  the  illegal 
sale  in  the  presence  of  and  in  olicdience  to  the  express  com- 
.  mand  of  her  mother.  This  fact  of  itself  had  some  tendency 
to  show  that  the  child  did  not  understand  that  the  act  which 
she  was  told  by  her  parent  to  commit  was  wrong,  and,  in 
connection  with  the  request  for  instructions  which  was 
made  by  the  defendant's  counsel,  required  the  judge  to  give 
full  and  explicit  instructions  on  the  subject  of  legal  com- 
petency to  commit  crime.  The  omission  of  such  instruc- 
tions was  an  error,  which  in  our  judgment,  renders  it 
necessary  that  there  should  be  a  new  trial  of  the  case." 

In  Willet  V.  Commonwealth  ^  the  opinion  of  the  court  is 
as  follows:  "Jesse  Willet,  a  boy  about  twelve  years  of 
age,  was  indicted  in  the  Pendleton  Circuit  Court  upon  a 
charge  of  false  swearing,  and  sentenced  to  confinement  in  the 
state  prison  for  fifteen  months.  There  being  testimony  con- 
ducinji  to  show  that  the  accused  had  made  contlictino^  state- 
ments  with  reference  to  the  same  matter,  when  examined 
as  a  witness  before  the  grand  and  petit  juries  of  Pendleton 
County,  his  counsel  asked  the  court  to  say  to  the  jury  : 
'  That  the  law  presumed  the  prisoner  incapable  of  the  crime 
of  false  swearing  if,  at  the  time,  he  was  under  fourteen 
years  of  age.'  This  instruction  was  refused,  and  no  in- 
struction given  presenting  this  view  of  the  case  to  the  jury. 
The  doctrine  recognized  in  the  elementary  books  upon  the 
question  involved  is,  '  that  infants  are  ^;?'zma  facie  unac- 
quainted with  guilt,  and  can  not  be  convicted,  unless  at  the 
time  the  offense  was  committed,  they  had  a  guilty  knowledge 
that  they  w^erc  doing  wrong.'  This  is  not  even  a  disput- 
able presumption  when  applied  to  an  infant  under  seven 
years  of  age ;  but  between  seven  years  and  fourteen 
the  commonwealth  may  rebut  the  presumption  b}^  showing 
a  guilty  knowledge  on  the  part  of  the  accused.     Russell 

^  1  13  Dush,  230(1877). 


I 


KULE  G9,]   rRESUMPTIOXS  FKOM  COUKSE  OF  NATURE.     285 

says  that  thi.s  presumption  will  diminish  with  the  advance 
of  the  offender's  years,  and  will  depend  upon  the  particular 
facts  and  circumstances  of  his  case.  1  Russell,  p.  2. 
This  same  author  suf^gcsts  that  "  the  proper  course  is  to 
leave  the  case  to  the  jury  to  say  whether  at  the  time  of  the 
commission  of  offense  such  person  had  guilty  knowledge 
that  he  was  doing  wrong,"  The  test  given  by  Lord  Hale 
is,  *  whether  the  accused  at  the  time  was  cupablo  of  dis- 
cerning between  good  and  evil.'  Taylor,  in  his  work  on 
Evidence,  questions  the  philosophy  of  the  rule  laid  down 
by  Hale,  for  the  reason  that  it  is  too  indefinite,  and  may  be 
applied  *  either  to  legal  responsibility  or  to  moral  guilt.' 
1  Taylor  on  Evidence,  190.  Few  infants  between  the 
ages  of  seven  and  fourteen  years,  with  ordinary  intellects, 
are  so  ignorant  as  not  to  know  that  to  lie  or  steal  is  wrong  ; 
and,  therefore,  in  applying  the  rule  laid  down  by  Lord  Hale 
or  Russell,  the  infant  derives  no  benefit  from  the  legal  pre- 
sumption, and  instead  of  being  favored  by  the  law,  is  dealt 
Avith  in  the  same  manner  as  those  more  advanced  in  life.  A 
sense  of  moral  guilt  only  on  the  part  of  the  infant,  in  the 
absence  of  a  knowledge  of  his  legal  responsibility  for  his 
wrongful  act,  will  not  authorize  a  conviction.  When  the 
prosecution  satisfies  the  jury  that  the  infant,  at  the  time  he 
committed  the  offense,  knew  it  was  wrong,  and  was  aware 
of  his  legal  responsibility  for  the  commission  of  the  crime, 
the  legal  presumption  of  innocence  on  account  of  his  tender 
years  no  longer  exists;  but  in  the  absence  of  such  proof, 
the  legal  presumption  must  produce  an  acquittal.  The 
court  below  having  erred  in  refusing  to  instruct  the  jurj^on 
this  branch  of  the  case,  the  judgment  is  reversed  and  cause 
remanded,  with  directions  to  award  a  new  trial,  and  for 
further  proceedings  consis;tent  with  this  opinion." 

In  State  v.  Sam,^  the  opinion  of  the  court  was  as  fol- 
lows: *'  The  question  brought  up  in  this  case  for  review 
is  whether  a  person  of  color  under  fourteen  years  of  age, 

1  Wiust.  COO,  (1S64). 


286  PEESUMPTmi  EVIDENCE.  [rule  G9. 

can  be  convicted  of  an  assault  with  intent  to  commit  a 
rape.  By  the  provisions  of  the  Rev.  Code,  ch.  107,  §  44, 
and  ch.  34,  §  2,  the  offense  charged  in  the  bill  of  indict-, 
ment  is  declared  to  be  a  capital  felony,  and  is,  therefore, 
entitled  to  be  considered  under  the  safeguards  which  the 
law  has  thought  proper  to  throw  around  human  life.  By 
the  common  law  persons  between  the  ages  of  seven  and 
fourteen  may  be  convicted  of  most*  offenses,  if,  added  to 
the  proof  of  the  corpus  delicti,  there  be  proof  also  of  the 
mischievous  mind.  There  is  a  legal  presumption  that  such 
persons  are  doli  incapaces;  but  it  is  a  rebuttable  presump- 
tion. It  is  not  so  in  respect  to  the  crime  of  rape.  The 
presumption  against  its  commission  by  persons  below  the 
age  of  puberty  (fourteen)  is  irrebuttable.  This  is  not  so 
much  on  the  ground  of  incapacity  of  mind  or  will,  but  of 
physical  impotency.  It  will  follow  as  a  plain  legal  deduc- 
tion from  this,  that  the  person  under  fourteen  can  not  com- 
mit an  assault  with  intent  to  commit  a  rape.  It  is  a  logical 
solecism  to  say,  that  a  person  can  intend  to  do  what  he  is 
physically  impotent  to  do.  These  principles  are  supported 
by  the  following  authorities:  Arch.  Crim.  Pr.  3  ;  3  Chitty's 
Crim.  Law,  811;  Bex  v.  Uldershaw,^  and  Regina  v.  PJdl- 
lips.'^  The  courts  of  two  of  the  States  north  of  us  have  held 
convictions  for  *  assaults  with  intent '  right,  when  the  per- 
sons were  under  fourteen.  But  it  is  noticeable  that  the 
offense  in  these  States  is  a  misdemeanor.  In  the  one  case 
there  was  a  divided  court,  and  in  the  other  the  common-law 
principles,  as  here  laid  down,  were  recognized  ;  but  the 
court  undertook  to  alter  them,  to  suit  the  altered  tempera- 
ment of  the  population.  These  do  not  at  all  affect  the 
stability  of  the  law  as  now  expounded.  With  the  excep- 
tions noticed,  it  has  been  uniform,  we  think,  in  all  the  set- 
tlements of  the  continent  which  have  adopted  the  common 
law  of  England.     By  a  prosier  consideration  of  principles, 

1  li  Eng.  Com.  Law,  33G.  »  31  Eng.  Com.  Law,  763. 


RULE    G!}.]      PKESUMmOXS  FROM  COURSE  OF  NATURE.  287 

it  will  be  seen  why  the  fact  found  by  the  juryth.it  there 
was  an  emission  of  seed  from  the  person  of  the  prisoner, 
does  not  materially  aflect  the  case.  The  presumption  which 
arises  from  want  of  age,  applies  equally  to  the  oflcnse  of 
rape  and  the  offense  of  assault  with  intent  to  commit  it. 
Both  presumptions  are  irrebuttable.  The  case  of  State  v. 
Pur/It,^  recognizes  the  distinction  here  made.  So  far  from 
inpugning  it  is  strictly  in  accordance  with  them,  A  large 
portion  of  our  population  is  of  races  from  more  Southern 
latitudes  than  that  from  which  our  common  law  comes.  We 
have,  indeed,  an  element  of  great  importance  from  the  torrid 
zone  of  Africa.  It  is  unquestionable  that  climate,  food, 
clothing,  and  the  like,  have  a  great  influence  in  hastening 
physical  development.  Whether  it  may  not  be  advisable  to 
move  down  to  an  earlier  age  than  fourteen,  the  period  of 
puberty,  for  a  portion,  if  not  for  all  the  elements  in  our  pop- 
ulation, may  be  a  proper  inquiry  for  the  statesman.  The 
courts  decide  the  law  as  it  stands.  The  legislative  body 
will  inquire  whether  the  exigencies  of  the  age  require 
change. 

In  B.  V.  Smith,-  the  wife  acting,  as  the  jury  found,  under 
the  coercion  of  her  husband  wrote  letters  to  the  prosecutor 
pretending  that  she  had  become  a  widow  and  requesting  a 
meeting  at  a  distant  place.  The  meeting  was  granted,  and 
the  wife,  dressed  as  a  widow,  met  the  prosecutor  at  a  rail- 
way station,  and  induced  him  to  go  with  her  to  a  lonely 
spot,  where  the  husband  fell  upon  him  and  inflicted  the  in- 
juries alleged  in  the  indictment.  A  verdict  of  guilty  of 
felonious  wounding  was  entered  against  both  husband  and 
wife,  the  former  was  sentenced  but  the  judge  reserved  the 
question  of  the  wife's  liability  for  the  full  court.  It  was 
afterwards  considered  by  Pollock,  C.  B.,  Willis,  J.,  Bram- 
well,  B.,  Channell,  B.,  and  Byles,  J.,  who  reversed  her 
conviction,  Pollock,  C.  B.,  saying:  "The  jury    have    dis- 

I  7  Jones,  Gl.  '  Dears.  &  B.  653  (1S5^). 


288  PRESUMPTI"V*E   EVIDENCE.  [RULE    G9. 

posed  of  this  case  by  their  finding.  They  have  found  that 
Sarah  Smith  was  a  married  woman ;  that  she  acted  under 
tlie  coercion  of  her  husband  and  that  she  herself  did  not  in- 
flict any  violence  upon  the  prosecutor.  The  conviction, 
therefore,  so  far  as  it  extends  to  her,  must  be  reversed." 

In  R.  V.  Hughes^  Thompson,  J.,  said  :  "  The  law,  out  of 
tenderness  to  the  wife,  if  a  felony  be  committed  in  the 
presence  of  the  husband,  raises  a  presumption  prima 
facie     *     *     *     that  it  was  done  under  his  coercion." 

In  R.  V.  Connolly,'^  the  prisoner,  Sarah  Connally,  was 
indicted  for  uttering  base  coin.  The  evidence  was  that  she 
had  o-one  from  house  to  house  uttering  base  coin,  and  that 
her  husband  accompanied  her  to  the  door  but  did  not  go  in. 
Bayley,  J.,  directed  the  jury  to  infer  that  she  was  acting 
under  the  coercion  of  her  husband  and  to  find  her  not 
guilty. 

In  R.  V.  Archer^  the  prisoner  and  his  wife  were  indicted 
for  burglary  and  receiving  stolen  goods.  The  judge  told 
the  jury  that  generally  speaking,  the  law  does  not  impute 
to  the  wife  those  offenses  which  she  might  be  supposed  to 
have  concurred  in  by  the  coercion  or  influence  of  her  hus- 
band and  particularly  where  his  house  is  made  the  recepta- 
cle of  stolen  goods  ;  but  if  the  wife  appears  to  have  taken 
an  active  and  independent  part  and  to  have  endeavored  to 
conceal  the  stolen  goods  more  effectually  than  her  husband 
could  have  done,  and  by  her  own  acts,  she  would  be  respon- 
sible as  for  her  own  uncontrolled  offense.  On  appeal  all  the 
judo-es  held  that  as  the  charge  against  the  husband  and  wife 
was  joint,  and  it  had  not  been  left  to  the  jury  to  say  whether 
she  received  the  goods  in  the  absence  of  the  husband,  the 
conviction  of  the  wife  could  not  be  supported,  though 
she  had  been  more  active  than  the  husband,  and  they  rec- 
ommended a  pardon  for  her. 

In  R.  V.  Stapleton,^  S.  and  his  wife  were  indicted  for  a 
robbery,  in  which  the  latter  appeared  to  have  taken  an  active 

1  2  Lewin,  230  flSSO).  3  i  Moody,  145  (]82n). 

s  2  Lewin.  229  (1829).  ■»  1  Or.  &  D.  163  (lJ;28). 


IIULE    G9.]      rRESUMrriONS  FROM  COURSE  OF  NATUUE.  289 

part.  Bushc,  C.  J.,  left  the  question  of  coercion  to  the 
jury,  who  found  both  prisoners  f^uilty.  The  point  was  re- 
served for  the  consideration  of  the  judges,  who  hehl  thtit 
the  presence  of  the  husband  afforded  only  presumptive 
evidence  of  coercion  of  the  wife,  which  was  capable  of  being 
repelled  by  other  evidence.  Some  of  the  judges  doubted 
whether  the  privilege  of  a  feme  covert  existed  in  any  case 
attended  with  violence  to  the  person.  The  conviction  was 
sustained. 

In  Queen  v.  Buncomhe}  ]Mary  Buncombe  was  indicted 
for  assaulting  and  robbing  one  Boley.  Marshman,  in 
opening  the  case  for  the  prosecution  stated  that  it  appeared 
that  the  offense  was  committed  by  the  prisoner  in  the  pres- 
ence of  her  husband,  Avho  had  absconded.  Coleridge,  J,, 
♦'  Can  you  proceed  with  this  case?  If  the  offense  was  com- 
mitted in  the  presence  of  her  husband,  how  can  she  be 
liable?  "  Marshman  contended  that  the  wife  was  liable  for 
an  offense  committed  in  the  presence  of  her  husband  where 
violence  is  used ;  citing  the  following  passage  from  Kus- 
sell  on  Crimes,'-  in  reference  to  femes  covert:  "  And  if  she 
commit  a  theft  of  her  own  voluntary  act,  or  by  the  bare 
command  of  her  husband,  or  be  guilty  of  treason,  murder, 
or  robbery  in  company  with  or  by  coercion  of  her  husband, 
she  is  punishable  as  if  she  were  soZe."  Coleridge,  J.  : 
"  On  such  an  authority  the  case  must  proceed.  But  if  the 
prisoner  be  convicted  I  shall  reserve  the  point  for  the  con- 
sideration of  the  judges."  The  prisoner,  however,  was 
found  not  guilty. 

In  R.  V.  ]Vrir/J((,^  it  was  ruled  that  where  a  larceny  is 
jointly  committed  by  a  husband  and  wife,  the  wife  is  entitled 
to  be  acquitted  as  under  coercion,  and  that  the  woman, 
being  indicted  as  the  wife  of  A.  B.  (the  male  prisoner)  is 
sufficient  proof  that  she  is  so  for  this  purpose.  In  this 
case  Henry  Knight  and  Anne  his  wife  were  indicted  for 
stealing  curtain  pins.     From  the  evidence  it  appeared  that 

1  1  Cox  C.  C.  1S3  (lSi5).  'Vol.  1,  p.  IS.  3  IC.&r.  116(1823). 

19 


290  PRESOiPTivE  EVIDE^■CE.  [rule  G9. 

both  the  prisoners  were  in  company  at  the  time  of  the  theft. 
Park,  J.,  directed  the  jury  to  acquit  the  female  prisoner,  be- 
cause if  a  man  and  his  wife  jointly  commit  a  felony,  the 
wife,  being  presumed  in  law  under  his  coercion  and  control, 
is  entitled  to  an  acquittal.  It  was  not  necessary  in  this  case 
to  adduce  evidence  to  show  she  was  his  wife,  as  it  was  ad- 
mitted on  the  face  of  the  indictment,  the  prisoners  being 
indicted  as  "Henry  Knight  and  Anne  his  wife."  "An- 
other strong  case  is  that  of  Elizabeth  Ryan,  better  known 
b}^  the  name  of  Paddy  Brown's  wife,  who  was  tried  at  the 
Old  Bailey  under  the  statute  of  16  Geo.  II.,  ch.  31,  for  con- 
veying implements  of  escape  to  her  husband  who  was  in  New- 
gate, convicted  of  felony.  It  appeared  that  she  procured  the 
instruments  in  question  by  her  husband's  direction.  She 
was  convicted,  but  afterwards  pardoned,  it  was  understood 
because  the  judges  considered  that  she  acted  under  coercion, 
though  her  husband,  from  being  in  prison  could  not  be 
present."  ^ 

In  a  note  to  R.  v.  Knigld^  it  is  said  :  "In  all  cases  ex- 
cept treason  and  murder  where  a  felony  is  committed  by  a 
husband  and  wife  jointly,  or  by  a  wife  in  company  with  her 
husband,  the  wife  being  presumed  in  law  under  his  control, 
is  entitled  to  an  acquittal.  A  strong  case  on  this  subject 
occurred  in  the  Midland  Circuit  before  Mr.  Justice  Burrough. 
A  husband  and  wife  were  jointly  indicted  for  a  robbery; 
it  appeared  that  the  husband  was  reluctant,  but  his  wife  com- 
pelled him  to  go  with  her  and  commit  the  robbery  ;  the 
learned  judge  directed  the  jury  to  acquit  the  woman  on  the 
ground  of  coercion,  saying  that  it  was  a  presumption  of 
law  which  he  and  they  were  bound  by  ;  however  in  fact  the 
coercion  might  be  the  contrary  way.  The  woman  was  ac- 
quitted and  the  man  found  guilty."  The  later  cases,  it  is 
obvious,  do  not  go  so  far  as  this  in  exculpating  the  wife. 

In  it.  V.  Squire,^  tried  at  the  Stafford  Lent  Assizes,  A.  D. 

1  Note  to  K.  V.  Knight,  1  C.  &  P.  116  (18S2). 

2  1  C.  &P.  116  (1S2.'.). 

3  Burns,  Justice,  tit.  Wife. 


RULE  G9.]   rRESUMPTIONS  FHOM  COURSE  OF  NATURE.     291 

1700,  Charles  Squire  and  Hannah  his  wife  were  indicted  for 
tlie  murder  of  a  boy  who  was  bound  as  a  parish  apprentice 
to  the  prisoner  Charles  ;  and  it  appeared  in  evidence  that 
])oth  the  prisoners  had  used  the  apprentice  in  a  most  cruel 
and  barbarous  manner,  and  that  the  wife  had  occasionally 
committed  the  cruelties  in  the  absence  of  her  husband.  But 
the  surgeon  who  opened  the  body  deposed  that  in  his  judg- 
ment the  boy  died  from  debility  and  want  of  proper  food 
and  nourishment,  and  not  from  the  wound,  which  he  had  re- 
ceived. Upon  this  Lawrence,  J.,  directed  the  jury  "  that  as 
the  wife  was  the  servant  of  the  husband,  it  was  not  her  duty 
to  provide  the  apprentice  with  sufficient  food  and  nourish- 
ment, and  that  she  was  not  guilty  of  any  breach  of  duty  in 
nc'dectino-  to  do  so:  though  if  thehusband  had  allowed  suf- 
ficient  food  for  the  apprentice,  and  she  had  wilfully  with- 
holden  it  from  him,  then  she  would  have  been  guilty;  but 
that  here  the  fact  was  otherwise,  and,  therefore,  although 
in  foro  conscientice  the  wife  was  equally  guilty  with  her 
husband,  yet  in  point  of  law,  she  could  not  be  said  to  be 
guilty  of  not  providing  the  apprentice  with  sufficient  food 
and  nourishment." 

In  Commonwealth  v.  Burlc^  a  married  woman  was  in- 
dicted for  selling  intoxicating  liquors,  and  it  appeared  that  the 
sales  were  made  in  a  dwelling  house,  her  husband  being  at  the 
time  either  within  or  just  outside  the  house.  The  prisoner 
asked  the  judge  to  instruct  the  jury  "  if  they  found  that  the 
husband  was  near  enough  for  the  wife  to  act  under  his  imme- 
diate influence  and  control,  though  not  in  the  same  room- 
the  wife  was  not  liable  for  such  sale."  But  the  judge  in, 
structed  them  that  "  if  the  husband  was  actually  i)resont  at 
the  time  of  the  sale,  the  wife  would  be  presumed  to  act 
under  his  coercion,  and  could  not  be  found  guilty,  and  that 
if  the  wife  sold  the  liquor  as  the  agent  and  by  the  authority 
of  her  husband,  and  as  such  received  the  money,  the  jury 
would  be  authorized   in  finding  her  guilty."     Being  con- 

1  11  Gray,  437  (1S5S) ;    Com.  r.  Welch,  07  Mass.  504  (1867). 


292  PRESUMPTIVE   EVIDENCE.  [eULE   69. 

victed  she  appealed  to  the  Supreme  Court  where  the  ruling 
■svas  held  erroneous.  "  The  instruction  prayed  by  the  defend- 
ant," said  Thomas,  J.,  *'  should,  we  think,  have  been  given. 
If  the  wife  acts  in  the  absence  of  the  husband  there  is  no 
presumption  that  she  acts  under  his  coercion.^  But  if  the 
husband  was  near  enough  for  the  wife  to  act  under  his  imme- 
diate influence  and  control,  though  not  in  the  same  room, 
he  Avas  not  absent  within  the  meaning  of  the  law.  The  wife, 
acting  in  the  presence  of  the  husband,  and  under  his  imme- 
diate influence  and  control,  is  not  an  agent  within  the  mean- 
ing of  the  statute  of  1855.^  The  laAV  regards  her  as  not  in 
the  exercise  of  her  own  discretion  and  will,  and  therefore  is 
incapable  of  committing  an  offense.  How  far  the  usages 
of  society  or  the  new  relations  of  husband  and  wife  may 
have  qualified  or  reversed  the  presumption  of  the  common 
law,  is  for  the  Legislature,  not  the  court  to  consider." 

In  People  v.  Toionsend^^  several  owners  of  property  were 
indicted  for  a  nuisance.  On  appeal  Bronson,  J.,  said: 
"Nor  do  I  see  on  what  principle  the  femes  covert  were  in- 
cluded in  the  indictment.  During  coverture  the  husband 
has  the  control  of  the  wife's  estate,  and  if  he  erects  a 
nuisance  on  her  land  she  can  not  be  made  to  answer 
criminally  for  that  offense." 

In  Commonwealth  v.  Leivis,  it  was  said  :  "  The  humanity 
of  the  criminal  law  does  indeed  in  some  instances  consider 
the  acts  of  the  wife  as  venial,  although  she  has  in  fact  par- 
ticipated with  her  husband  in  certain  acts  which  on  the  part 
of  the  husband  would  constitute  an  offense  as  against  him; 
upon  the  ground  that  much  consideration  is  due  to  the  great 
principle  of  confidence  which  a  feme  covert  may  properly 
place  in  her  husband,  as  well  as  the  duty  of  obedience 
to  the  commands  of  the  husband  by  which  some  femes 
coverts  may  be  reasonably  supposed  to  be  influenced  in  such 
cases.     Thus  in  cases  of  theft  or  burglary,  where  the  wife  is 

1  Com.  V.  Murphy,  2  Gray.  511.  »  3  Hill,  481  (1842). 

?  Ch.  215,  sec.  15. 


I 


RULE    G9.]      rKESUMPTIOXS  FRCiM  COURSE  OF  NATURE.  293 

in  company  with  her  husband,  the  law  presumes  that  she 
acts  under  coercion,  and  slic  is  to  be  acquitted."  ^ 

In  State  v.  Willianifi,'  the  husband  of  the  feme  defend- 
ant was  jointly  indicted  with  her  for  an  assault  and  battery 
upon  one  Anna  Davis.  It  was  in  evidence  that  the  defend- 
ant and  her  husband  committed  a  battery  on  the  prosecu- 
trix. The  defendant's  counsel  asked  the  court  to  instruct 
the  jury  that  the  feme  defendant  was  not  guilt}',  as  the 
offense  had  been  committed  with  her  husband,  and  in  his 
presence.  The  court  denied  so  to  charge,  but  instructed 
the  jury  that  when  a  married  woman,  in  the  presence  of  her 
husband,  committed  an  offense  against  natural  law,  and 
with  force  and  violence,  the  presumption  of  coercion  did 
notarise.  Defendant  excepted;  verdict  of  guilty;  judg- 
ment and  appeal.  In  the  Superior  Court  the  verdict  was 
set  aside,  Rodman,  J.  saying:  *'  The  liability  of  a  "wife  for 
a  crime  committed  in  the  presence  of  her  husband,  has  been 
variously  stated  by  respectable  text  writers.  Blackstone' 
says :  'And  in  some  felonies,  and  some  inferior  offenses  com- 
mitted by  her  (the  wife)  through  constraint  of  her  husband, 
the  law  excuses  her  ;  but  this  extends  not  to  treason  or  mur- 
der.' The  same  writer  in  Book  IV.  sa3's:  *And  she  will  be 
guilty  in  the  same  manner,  of  all  those  crimes  which  like 
murder  are  mala  in  se,  and  prohibited  by  the  law  of  nature.'  * 
Also,  in  Archibold's  Crim.  Prac.  and  PIeadin<i:  '  So  if  a 
wife  commit  an  offense  under  felony,  and  in  company  with 
her  husband,  she  is  liable  to  punishment  as  if  she  were  not 
married.*  For  this  is  cited,  1  Hawk,  ch.;  sec.  13:  'And 
generally  a  feme  covert  shall  answer  as  much  as  if  she  were 
solcy  for  any  offense,  not  capital,  against  the  common  law 
or  statute.  And  if  it  be  of  a  nature  that  maybe  committed 
by  her  alone  without  the  concurrence  of  her  husband,' 
etc.  It  was  upon  a  recollection  of  these  authorities 
that  his  Honor  below  ruled  in  the  case   as  he  did.     Never- 


I  Com.  r.  Lewis,  1  Mete.  153  (1840).  '  Book  1,  p.  444. 

s  65  N.  C.3G5  (1871).  <  1  Kuss.  Or.  16. 


204  PRESUMPTIVE  EVIDENCE.        [rULE  GO. 

tbcless  upon  a  fuller  examination  of  the  authorities,  we 
are  of  the  opinion  that  he  was  in  error.  It  seems  to  be 
admitted  by  all  the  authorities,  that  if  a  wife  commit  any 
felony  (with  certain  exceptions  not  material  now  to  con- 
sider), in  the  presence  of  her  husband,  it  shall  be  presumed, 
in  the  absence  of  evidence  to  the  contrary,  that  she  did  it 
under  constraint  by  him,  and  she  is  therefore  excused.  It 
is  generally  agreed  that  treason  and  murder  are  exceptions 
to  this  rule;  and  some  add  to  these  manslaughter,  robbery, 
and  perjury,  although  the  last  is  not  a  felony.  The  most 
important  (perhaps  all)  of  the  authorities  w'ill  be  found 
referred  to  in  the  notes  to  Commonwealth  v.  JSfeal,^  in  the 
argument  of  the  counsel  for  the  prisoner  in  Regina  v. 
Cruse. "^  As  has  been  seen,  several  eminent  text  writers 
confine  the  presumption  to  cases  of  felony.  But  the  more 
recent  cases,  both  English  and  American,  extend  it  to  mis- 
demeanors as  well;  those  cases  excepted,  which  from  their 
nature  w^ould  seem  more  likely  to  be  committed  by  women, 
such  as  keeping  a  bawdy  house,  etc.  The  case  above  re- 
ferred to,  of  Commonwealth  v.  Neal,^  was  an  indictment 
against  husband  and  wife  for  an  assault  and  battery,  and  is 
therefore  in  point.  Bishop^  considers  the  rule  applicable 
to  all  offenses  whatever,  with  certain  exceptions,  such  as 
treason,  murder,  etc.  There  are  many  English  cases  in 
which  it  has  been  applied  in  indictments  for  receiving 
stolen  goods.^  Hex  v.  Price^  was  for  a  misdemeanor  in 
uttering  counterfeit  coin  ;  and  as  was  Connolh/s  Case? 
When  our  accustomed  authorities  differ  as  to  a  principle,  it 
is  always  proper  to  look  at  its  foundation  in  reason.  Mr. 
Lewin  in  his  note  to  Rex  v.  Hughes^  says,  that  the  reason 

1  10  Maes.  152;  1  Lead.  Grim.  Cases,  81. 

2  2  Moody  0.  C.  53,  and  in  1  Bishop  C.  Law,  452. 

3  10  Mass.  152. 

*  1  vol.,  sec.  452. 

6  Rex  V.  Archer,  1  Moody  C.  C.  143;  Regina  i'.  Barber,  4  CoxC.  C.  272. 

6  8  G.  &  P.  19. 

1  1  Lewin  G.  C.  227. 

8  2LewinC.  C.  225. 


RULE    G9.]      PKESUMPTIONS  FROM  COURSE  OF  NATURE  295 

of  the  rule  in  cases  of  burglary  and  larceny,  had  been  said  to 
be,  that  the  wife  might  not  know  whose  the  goods  were  that 
were  taken.  This  reason  he  properly  rejects  as  insufficient 
and  suggests  that  it  was  considered  odious  and  unjust  to 
inflict  on  the  wife  a  severe  punishment  when  the  husband 
could  plead  his  clerg}''  (which  a  woman  could  in  no  case 
do),  and  thus  escape  with  a  slight  one.  The  reason  would 
confine  the  principle  to  the  clergyal)le  felonies.  It  seems, 
however,  more  natural  to  suppose  the  principle  to  have  been 
founded  upon  the  fact,  that  in  most  cases  the  husband  has 
actually  an  influence  and  authority  over  the  wife,  which  the 
law  sanctions,  or  at  least  recognizes.^  In  that  case  the  reason 
would  apply  to  a  misdemeanor  with  at  least  as  much  force 
as  to  clergyable  fitness,  and  this,  we  think  the  true  view.  It 
is  also  conceded  by  all  the  authorities  that  the  presumption 
may  bo  rebutted  by  the  circumstances  appearing  in  evidence, 
and  showing  that  in  fact,  the  wife  acted  without  restraint ; 
or  by  the  nature  of  the  offense.  But  in  this  case  no  cir- 
cumstances appear  tending  to  rebut  the  presumption  which 
the  law  raises;  and  the  case  was  not  put  to  the  jury  in  that 
point  of  view." 

In  Commonwealth  v.  Eagan,'^  on  the  trial  the  evidence 
showed  that  while  the  defendant's  husband  and  son  were 
using  angry  words  towards  Saxton,  the  defendant,  in  the 
immediate  presence  of  her  husband,  threw  a  pail  of  dirty 
water  on  Saxton.  This  Avas  all  the  material  evidence  in  the 
case.  Upon  these  facts,  the  defendant  asked  the  judge  to 
instruct  the  jury  that  the  presumption  was  that  she  acted 
under  the  coercion  and  control  of  her  husband,  and  should 
be  acquitted,  but  the  judge  declined,  and  instructed  the  jury 
that  if  they  were  satisfied  that  she  did  the  acts  proved  of 
her  own  free  will,  free  from  the  coercion  or  influence  of 
her  husband,  they  would  be  warranted  in  convicting  her. 
The  defendant  was  found  guilty  and  moved  in  arrest   of 

1  1  Hawk.,  ch.  1.  sec.  9;  1  Bishop  C.  L.  4J2. 

2  103  Mass.  71  (1SG7). 


296  PRESUMPTIVE   EVIDENCE.  [rULE    69. 

judo-ment,  "  because  it  does  not  appear  in  the  body  of  the 
complaint  who  was  the  complainant,  and  that  such  defect  is 
apparent,  and  is  in  matter  of  substance  and  not  of  form." 
The  motion  was  overruled,  and  the  defendant  alleged  excep- 
tions, which  were  sustained  in  the  Supreme  Court.     Morton, 
J.,  saying:   *«  The  assault  of  which  the  defendant  was  con- 
victed was  committed   in  the  immediate   presence  of  her 
husband.     The    presumption    of    law    is,  that    she  acted 
under    his    coercion.^     It  was   the   right   of    the  defend- 
ant   to     have    this    principle    stated    to    the    jury.      The 
counsel   asked   the    court   to    instruct   the    jury  '  that  the 
presumption  was  that  she  acted  under  the  coercion  and  con- 
trol of  her  husband,  and  should  be  acquitted.'     If  there 
was  evidence  in  the  case  to  rebut  the  presumption  in  favor 
of  the  defendant,  the  court  was  justified  in  refusing  to  in- 
struct the  jury  that  she  should  be  acquitted  ;  but  we  think 
that  the  first  part  of  the  instruction  requested  should  have 
been  given.     The  instructions  actually  given  would  have 
been  accurate  if  the  court  had  also  instructed  the  jury  as  to 
the  presumption  above  stated,  but  by  the  refusal  to  do  so 
the  defendant  was  deprived  of  the  benefit  of  this  presump- 
tion as  one  of  the  elements  proper  for  the  consideration  of 
the  jury  in  determining  her  criminal  liability. 

It  is  held  in  Arkansas  that  under  the  statute  of  that  State 
if  a  married  woman  commits  a  crime  of  any  kind  or  degree 
under  the  threats,  commands,  or  by  the  coercion  of  her  hus- 
band, she  can  not  be  found  guilty,  but  the  coercion  is  not  to 
be  presumed  from  his  presence,  but  must  be  proved  by  cir- 
cumstances. In  Freel  v.  8 tale, ^  Sally  Freel  was  indicted  for 
and  convicted  of  aiding  and  abetting  her  husband  in  the  mur- 
der of  one  Ortner.  On  appeal  the  Supreme  Court  said  : 
*'  The  plaintiff  in  error  moved  the  court  to  instruct  the  jury 
as  follows:  *  If  the  jury  believe  from  the  evidence  that  the 
act  charged  in  the  indictment  was  committed  by  the  defend- 
ant Sally  Freel,  in  the  presence  of  the  defendant  James  M. 

1  Commonwealth  v.  Gannon.  9"  Mass.  547 ;  Commonwealth  v.  Burk,  U  Gray,  437. 

2  21  Ark.  212  (1800). 


RULE    GI).]      PUESUMPTIONS  FIIOM  COURSE  OF  NATURE.  297 

Frccl,  unci  the  said  James  M.  Frccl  is  and  was  her  husband 
at  the  time  of  its  commission  they  must  find  the  defendant 
Sally  Frcel,  not  guilty  under  the  indictment.'  Which  the 
court  refused  ;  and  tiio  plaintiff  in  error  then  moved  the 
court  to  instruct  the  jury  as  follows:  '  That  if  they  believed 
from  the  evidence  that  she  was  the  wife  of  the  said  defend- 
ant James  M.  Freel,  and  the  said  act  charircd  in  tlie  indict- 
ment was  done  or  committed  by  the  defendant  Sail}'  Free!, 
in  the  presence  of  the  said  defendant  James  M.  Freel,  the 
presumption  of  law  is  that  the  said  act  was  done  and 
committed  by  her  under  and  on  account  of  the  coercion 
of  the  said  defendant  James  M.  Freel,  and  that  this  pre- 
sumption continues  until  it  is  rebutted  by  evidence  on 
the  part  of  the  State  showing  that  she  did  not  so  act 
under  such  coercion.'  Which  the  court  refused;  and  of 
its  own  motion  instructed  the  jury  as  follows :  '  That 
under  the  indictment  herein,  they  can  find  the  defendant 
guilty  of  murder  in  the  first  degree,  or  murder  in  the  second 
degree,  or  manslaughter.  That  the  fact  that  the  offense 
charged  in  the  indictment  was  committed  by  the  defendant 
in  the  presence  of  the  said  defendant  James  M.  Freel,  the 
husband  of  the  defendant,  affords  her  no  lefjal  excuse  or 
justification  for  its  commission.'  Marriage  does  not  de- 
prive the  wife  of  the  legal  capacity  of  committing  crime. 
Where  she  voluntary  commits  crime  of  any  grade,  the  mere 
presence  of  her  husband  does  not  excuse  her.  It  is  said  in 
some  of  the  English  books,  that  if  she  commit  treason, 
murder,  or  robbery,  by  the  coercion  of  her  husband,  the 
law,  on  account  of  the  odiousness  and  dangerous  con- 
sequences of  these  crimes,  wnll  not  excuse  hcr.^  ]Mr. 
Bishop  thinks  the  bettor  opinion  is  that  the  coercion 
of  tlie  husband  will  exempt  her  from  criminal  liability  for 
any  offense  whatever."^  It  is  agreed  by  the  authorities, 
that,  by  the  common  law,  the  coercion  of  the  husband  is 
not  to  be  presumed  from  his  presence  in  cases  of  treason. 


1  Arch.  dim.  Pica.  &  Ev.  C;  Roscoo  Cr.  Ev.  95G;  Ilale  P.  C.  44. 
*  Bishop  Cr.  L.,  sec.  277;  but  see  Wharton,  53. 


298  PEESmiPTIVE   EVIDENCE.  [RULE    CO. 

murder,  and  robbery,  though  as  to  other  felonies  and  mis- 
demeanors, perhaps,  the  rule  is  otherwise.^  Our  statute 
dechires  that:  'Married  women  acting  under  the  threats, 
commands,  or  coercion  of  their  husbands,  shall  not  be  guilty 
of  any  crime  or  misdemeanor,  if  it  appears  from  all  the 
facts  and  circumstances  of  the  case,  that  violence,  threats, 
commands,  or  coercion  were  used.^  The  first  instruction 
moved  by  the  plaintiff  in  error  was  properly  refused  by 
the  court,  because  it  assumes  the  law  to  be,  in  effect,  that 
the  wife  can  not  commit  a  crime  in  the  presence  of  her  hus- 
band —  or  at  least  that  his  presence  exempts  her  from  crim- 
inal liability.  The  second  was  also  properly  refused, 
because  it  assumes  that  the  coercion  of  the  husband  is  to 
be  presumed  from  his  presence,  in  a  case  of  murder  (the 
instruction  does  not  discriminate  between  offenses),  which 
is  contrary  to  the  common-law  rule  and  not  warranted  by 
our  statute.  The  charge  given  by  the  court,  of  its  own 
motion,  to  the  effect  that  the  presence  of  the  husband  was 
no  legal  excuse  or  justification  for  the  commission  of  the 
offense  by  the  wife,  was  substantially  correct.  If  the 
common-law  rule  was  that  the  coercion  of  the  husband  was 
no  excuse  for  the  wife  in  treason,  murder,  and  robbery,  as 
stated  by  the  English  authors  above  cited  (but  contro- 
verted by  Mr.  Bi.shop),  then  the  effect  of  our  statute  was 
to  extend  the  rule,  and  make  the  coercion  of  the  husband 
an  excuse  for  the  wife  in  *  any  crime  or  misdemeanor  ;' 
but  there  is  nothing  in  the  statute  from  which  it  may  be 
inferred  that  the  Legislature  meant  to  extend  the  rule  fur- 
ther,  and  make  the  presence  of  the  husband  raise  the  pre- 
sumption of  compulsion  in  all  cases  ;  on  the  contrary,  the 
excuse  of  the  wife  is  made  to  depend,  by  the  terms  of  the 
statute,  upon  its  appearing,  'from  all  the  facts  and  cir- 
cumstances of  the  case,'  that  coercion  was  used." 

In  case  III.  it  was  said:   **  The  general  rule  of  the  com- 
mon law  is  that  the  husband  is  liable  for  the  torts  of  his 


1  Id.,  and  note  to  Ilalc  46,  Stokes  &  Ing.  Ed. 
^  Dig.  Ch.  51,  sec.  1  of  Part  I. 


RULE  G9.]   rUESUMPTIONS  FROM  COURSE  OF  NATURE.     2'J9 

wife.^  But  the  question  here  is  as  to  their  joint  liabilit}'. 
AVhcn  the  tort  or  crime  is  committed  by  the  wife  alone,  and 
■without  the  presence,  or  direction  of  her  husband,  she  may 
beheld  liable,  civilly  and  criminally.  In  such  cases,  the  civil 
action  must  be  against  both  the  husband  and  the  wife.''  But 
if  committed  in  his  presence  and  by  his  direction,  he  alone  is 
liable.^  The  jor/majfac/e  presumption  is,  that  the  wife  acted 
under  coercion,  if  the  husband  was  actually  present.  This 
presumption  arises  as  well  in  civil  suits  for  torts,  as  in 
criminal  cases. ^  If  nothing  appears  but  the  fact  that  the 
wrong  was  done  whilst  they  were  both  together,  the  jury 
should  be  instructed  to  acquit  the  wife.  Such  j)resumptiou 
is  but  prima  facie,  and  may  be  rebutted  by  the  facts 
proved,  showing  that  the  wife  was  the  instigator  or  more 
active  party,  or  that  the  husband,  although  present,  was 
incapable  of  coercion,  —  or  that  the  wife  was  the  stronger 
of  the  two. ^  The  coercion  must  be  at  the  time  of  the  act 
done,  and  then  the  law  out  of  tenderness  refers  it,  prima 
facie,  to  the  coercion  of  the  husband.®  The  presumption  is 
one  of  the  compensations,  or  oflsets,  which  the  old  common 
law  gave  for  the  benefit  and  protection  of  the  wife,  for  its 
stern  and  unyielding  doctrines  in  relation  to  the  superior 
marital  rights  of  the  husband,  by  which  the  rights,  —  the 
personal  property  and  legal  existence  of  the  wife,  —  are 
nearly  all  lost  or  merged  in  her  baron  or  lord.  As  was 
forcibly  said  by  Mr.  Chief  Justice  Emery,  in  8late  v.  Bur- 
lingam.e,''  *  the  whole  theory  of  the  common  law  is  a  slavish 
one  compared  even  with  the  civil  law.  The  merging  of  the 
wife's  name  in  that  of  her  husband  is  emblematic  of  the 
fate  of  all  her  legal  rights.  The  torch  of  Hymen  serves 
but  to  light  the  pile  on  which  those  rights  are  offered    up.' 

1  Hawks  V.  Ilamar,  5  Binn.  43. 

*  2  Kent's  Com.  149;    Head  r.  Briscoe,  5  C.  &  P.  4S1   (24  E.  C.  L.  419) ;    Keyworth 
V.  Hill,  3  n.  &  Aid.  6S5  (5  E.  C.  L.  422). 

3  2  Kent's  Com.  110. 

*  miliard  on  Torts,  ch.  42. 

6  Wharton's  Am.  Or.  Law,  book  1,  sec.  73;  1  Ilale,  516. 
«  lb.,  sect.  74. 
'  15  Maine,  106. 


300  TRESUMPTIVE    E\^DENCE.  [rULE    69. 

It  "was  a  natural  and  logical  result,  as  the  founders  of  the 
common  law  clearly  saw  that  if  the  husband  was  to  be 
regarded  as  the  head  and  sole  representative  of  the  union, 
the  wife  should  have  the  benefit  of  her  legal  nonentity, 
when  acting  in  presence  of  her  husband,  even  if  she  appar- 
ently was  not  an  unwilling  actor.  Her  misdemeanors  and 
trespasses  were  to  be  looked  upon,  not  as  arising  from  the 
promptings  of  her  own  mind  and  will,  but  as  the  result  of 
the  overpowering  commands  or  coercion  of  him  whom  she 
had  promised  to  obey.  How  carefully  the  fathers  studied 
the  first  case  in  point,  recorded  in  the  history  of  man, 
(Genesis,  Chap.  HI.),  or  some  of  the  subsequently  re- 
ported cases,  where  to  common  observation  the  woman  and 
wife  appears  as  the  prime  mover  in  wrong  and  mischief, 
we  can  not  know  and  need  not  discuss.  But  to  meet  the 
actual  facts  of  history  and  observation,  the  law  has 
engrafted  the  qualification  on  the  rule,  before  stated,  viz., 
that  the  prima  facie  presumption  may  be  overcome  by  the 
proof  in  the  case,  that,  in  fact,  the  wife  was  the  originator, 
dictator,  and  principal  offender.^  When  there  are  other 
facts  established,  besides  the  presence  of  the  husband,  as  to 
the  participation  of  the  wife  in  originating  and  carrying  on 
the  common  purpose,  it  is  a  question  for  the  jury  to  deter- 
mine whether  or  not  the  presumption  is  overcome." 

In  case  V.  it  was  said :  "  It  is  not  necessary  to  the  decis- 
ion of  this  case  to  hold  that  a  married  woman,  living  with 
her  husband,  can  not,  under  any  circumstances,  be  regarded 
as  the  head  of  the  family.  The  only  facts  relied  upon  to 
sustain  the  proposition  that  the  appellee  in  this  case  was,  at 
the  time  in  question,  the  head  of  a  family,  are  that  the  res- 
idence of  the  family  was  *  on  her  own  premises  ;'  that 
'  the  property  on  the  premises  was  her  own  sole  and 
separate  property,'  and  that  '  she  had  children  by  her  former 
husband  residing  with  her.'  These  facts  alone  are  surely 
not  sufiicicnt  to  show  clearly  that  she  was  at  the  time,  '  the 

1  nilliard  on  Torts,  ch.  42,  sec.  1;  Com.  v.  Lewis,  1  Mete.  153. 


RULE  G9.]   PRESUMPTIONS  FROM  COURSE  OF  NATURE.     301 

head  of  the  famil}-,'  especially  when  it  is  said  in  the  same 
statement  that  she  -was  at  the  time  residing  '  with  her  hus- 
band.' Ordinarily,  at  least,  when  the  wife  lives  with  the 
husband,  he  must  be  regarded  as  the  head  of  the  family. 
If,  in  fact,  he  has  not  the  control  of  the  family,  and  is  not 
the  head  thereof,  such  fact  must  be  shown  by  proof.  The 
inference  that  he  is  the  head  must  be  rebutted  by  proof,  and 
in  a  penal  action  that  proof  must  clearly  rebut  such  infer- 
ence. It  may  well  be  that  this  man  and  his  wife  were  living 
upon  her  land,  and  that  the  personal  property  on  the  place 
was  her  property,  and  that  her  children  constituted  a  part 
of  the  family,  and  yet  the  husband  may  have  had  the  most 
complete  control  of  the  family  and  of  all  the  business  trans- 
acted upon  the  land.  For  aught  that  is  here  shown,  he 
may  have  been  a  man  of  wealth,  and  may  have  been  sup- 
porting his  wife  and  her  children  in  affluence.  Again,  it 
is  not  shown  by  the  statement  that  the  constable  had  notice 
that  any  anomalous  relations  existed  in  this  family,  constitut- 
ing the  wife  the  head  of  the  family.  Presumptions  must 
not  be  too  freely  indulged  in  penal  actions." 

Incase  VIII.  it  was  said:  "  It  never  was  the  intention  of 
the  constitution  (in  giving  the  wife  a  separate  estate),  to 
ignore  the  strong  ties  of  domestic  affection  and  mutual  con- 
fidence which  spring  from  the  relation  or  to  interfere  with 
any  presumptions  based  upon  them.  The  whole  doctrine 
of  advancements  is  founded  upon  these  and  like  presump- 
tions and  they  extend  not  only  to  the  relation  of  husband 
and  wife,  but  also  to  mother  and  daughter,  grandparents 
and  grandchildren,  even  under  some  circumstances  to 
father-in-law  and  son-in-law  —  indeed,  to  all  the  relations  of 
life  that  imply  the  existence  of  strong  affection  with  an 
obligation  of  a  moral  nature  to  love  and  protect.  They 
are  based  upon  the  laws  of  our  being,  and  amount  only 
to  this  single  common  sense  view  that  persons  in  these 
relations  who  do  favors  have  higher  and  tenderer  mo- 
tives than  any  expectation  of  pay.  This  is  only  a  claim 
for  money  advanced  to  buy  a  i)iece  of  laud  for  the  wife 


30-?  PRESmiPTIVE   EVIDENCE.  [rULE    69. 

and  improve  it.  It  was  a  good  thing  for  a  husband  to 
do,  and  may  be  supposed  to  have  been  done  from  a  desire 
to  protect  her  against  want.  The  law  will  not  raise  an 
implied  promise  on  her  part  to  repay  it.  It  w^ill  be  pre- 
sumed to  be  a  o;ift." 

"  The  law  respects  the  regular  course  of  nature  in  every 
way,  and  consequently  in  all  cases,  in  so  far  as  the  course  of 
nature  is  known,  all  such  facts  as  well  in  regard  to  the  rev- 
olution of  the  seasons  as  to  animals  and  vegetables  ;  as  the 
mating  of  birds  and  their  co-operation  in  raising  their 
young,  the  blooming  time  of  roses  and  the  like,  are  received 
as  being  in  themselves  entirely  trustworthy,  or  as  facts  from 
which  inferences  as  to  the  truth  of  other  facts  may  be  safely 
drawn.  In  questions  of  bastardy  the  time  of  access  being 
proved,  the  known  term  of  gestation,  reckoning  from  the 
time  of  birth,  is  always  received  as  a  most  satisfactory  kind 
of  presumptive  evidence.  So,  too,  in  all  the  various  ques- 
tions in  relation  to  the  right  of  property,  connected  with  a 
continuance  of  'life,  facts,  so  far  as  they  are  known,  in 
regard  to  the  probability,  the  expectation,  and  the  average 
duration  of  human  life,  have  always  been  in  like  manner 
admitted  as  evidence  ;  or  as  a  ground  from  which  presump- 
tive evidence  of  the  existence  of  other  facts  may  be  fairly 
deduced,  and  there  can  be  no  doubt  that  the  regular  and 
known  course  of  nature  in  the  formation  of  vegetables  may 
be  as  safely  relied  on  as  direct,  or  as  presumptive  evidence, 
as  in  that  of  animals."  ^ 

The  presumption  is  that  children  under  the  age  of  twenty- 
one  years  remain  unemancipatcd,  and  that  children  above 
that  age  are  empancipated,  until  the  contrary  appears.^  So 
the  domicil  of  an  infant  is  presumed  to  be  that  of  the 
mother.^ 

In  a  number  of  cases  the  English  courts  have  acted  on 
the  presumption  that  a  woman  beyond  a  certain  age,  is  inca- 

1  Patterson  v.  McCausland,  3  Bland.  Ch.  70  (1830). 

«  J'itzwilliam  v.  Troy,  6  X.  H.  IfJG  (183:5) ;  Oxford  v.  Rumney.  3  N.  H.  331. 

2  Sprague  v.  Litherberry,  4  McLean,  442  (laiS). 


RULE    70.]      PIIESUMPTIOXS  FROM  COURSE  OF  NATURE.  303 

pable  of  cliild  bearing,^  No  ca><c  can  be  found  in  the 
American  courts  in  which  such  a  presumption  has  been 
given  effect  to.  In  LUt  v.  Rodney,'^  \t  was  laid  down  that 
in  the  devoUition  of  estates,  the  hiw  presumes  the  possibil- 
ity of  bearing  children,  even  when  a  woman  has  passed  the 
age  to  which  the  ability  to  do  so  usually  continues.  So  in  a 
number  of  English  cases,  the  courts  have  refused  to  pre- 
sume impossibility  of  issue  on  account  of  old  age  in  the 
cases  both  of  women  ^  and  men.*  In  the  Soutii,  in  slavery 
times,  a  person  of  color  was  presumed  to  be  a  slave.* 

RULE  70.  — A  person  is  presumed  to  do  what   it  is  his 
interest  to  do,  and  not  to  act  against  his  interest.^ 

Bhistrations. 

I.  An  estate  is  devised  to  A.  The  law  presumes  that  it  is  beneficial 
to  A.,  and  that  he  accepts  it.  He  may  disclaim  it,  but  to  worli  this,  a 
disclaimer  must  be  proved.'' 

II.  A  conveyance  of  property  is  made  to  B.  The  presumption  is  that 
B.  accepts  it.* 


1  Levy  V.  Hodges,  Jac.  585;  Lyddon  v.  Ellison,  19  Beav.  505;  Miles  v.  Knight,  12 
Jur.  6C6;  Dodd  r.  Wake,  5  DeG.  &  Sm.  226;  Brandon  r.  Woodthoriic,  10  Dtav.  463; 
Brown  v.  Pringle,  4  Uare,  124 ;  Edwards  v.  Tuck,  23  Beav.  271 ;  Hayncs  r.  Haynes,S5 
L.  J.  Ch.  303;  Davis  r.  Bush,  8  Jur.  1114;  Davidson  v.  Kimiiton,L.  R.  18  Cli.  Div.  213; 
Groves  v.  Groves,  12  W.  K.  45;  Widdow's  Trusts,  L.  R.  11  Eq.  408;  Milluer's  Estate, 
R.  14  Eq.  245;  Payne  v.  Long,  19  Ves.STl. 

2  83  Pa.  St.  4S3  (1S77). 

«  Eraser  r.  Eraser,  Jac.  586;  Conduit  v.  Soane,  24  L.  T.  (N.  s.)  6.56;  Jec  v.  Audley, 
1  Cox,  325;  Overhill's  Trusts,  17  Jur.  342;  Reynolds  v.  Reynolds,  1  Dick.  374;  Croxton 
V.  May,  L.  U.  9  Ch.  Div.  388. 

*  Lushington  v.  Boldero,  15  Beav.  1 ;  Trevor  r.  Trevor,  2  Myl.  A  K.  675;  Alsop  v. 
Bi'.wtrell,  Cro.  Jac.  511;  Lomax  r.  llolmdon,  2  Sir.  940,  rirfe  Mr.  Stewart's  note  to 
Apgar's  Case,  37  N.  J.  Eq.  501  (1883). 

"*  Field  r.  Walker,  17  Ala.  80  (1849) ;  Becton  r.  Ferguson.  22  Ala.  599  (1853). 

0  Creps  t'.  Buird,  3  Ohio  St.  277  (1S.")4)  ;  Clawsou  r.  Eichhaum,  2  Grant's  Cas.  130 
(18,5;>).  A  person's  assent  to  a  matter  which  is  obviously  for  liis  benefit  may  he  pre- 
sumed, but  not  whore  it  would  be  prejudicial  to  him.  Uighain  v.  Stewart,  3S  Mich. 
513  (1S7S). 

'  Towson  V.  Ticknell,  3  B.  &  Aid.  31  (1819) ;  Thompson  r.  Leach,  2  Salk.  C18. 

8  Bcnsley  v.  Atwill,  12  Cal.  231  (1859) ;  Lady  Superior  r.  McNamara,  3  Barb.  Ch. 
375;  49  Am.  Dec.  184  (1S4S) ;  Peavey  v.  Tilton,  18  N.  IL  151;  45  Am.  Dec.  365  (1816) ; 
Merrills  v.  Swift,  IS  Conn.  207;  46  Am.  Dec.  315  (1847);  Thome  r.  San  Francisco,  4 
Cal.  169;  Ilallock  v.  Bush,  2  Root  (Conn.)  26;  Maynard  r.  Maynard.lO  Mass.  4.56; 
Wheelwright  f.  Wheelright,  2  Mass.  447;  Read  r.  Robinson,  6  W.  &  S.  329;  Cliess  r. 
Cliess,  1  Pa.  St.  32  ;  Beers  v.  Broome,  4  Conn.  217;  TIbballs  v.  Jacol)s,  31  Conn.  428; 
Hedge  v.  Drew,  12  Pick.  141;  Uugles  v.  Lawsou,  13  Johns.  285;  Jackson  v.  Phipps,  12 


304  PKESUJIPTIVE   EVIDENCE.  [rULE    70. 

III.  A  charter  has  been  granted  to  certain  parties.  The  law  pre- 
sumes it  to  have  been  accepted.^ 

IV.  A  husband  dies  leaving  a  will  in  which  he  devises  one-half  of  all 
his  property  to  his  wife.  The  wife  dies  seven  days  afterward  without 
either  waiving  or  accepting  the  provision,  or  claiming  her  dower.  As 
the  provisions  of  the  will  arc  more  beneficial  to  her  than  her  legal  dower 
the  presumption  is  that  she  accepted  them.^ 

v.  It  is  shown  that  certain  arrangements  were  made  for  a  person's 
benefit.     The  presumption  is  that  the  person  assented  to  them.^ 

VI.  A  deed  of  assignment  beneficial  to  creditors  is  executed  by  an 
insolvent.    The  presumption  is  that  they  assent  to  it.* 

VII.  An  act  of  the  Legislature  was  passed  reciting  that  B.  was  the 
illegitimate  child  of  A.,  changing  B.'s  surname  to  that  of  A.  and  legiti- 
mizing him.  A.  afterwards  malies  a  deed  to  B.  of  some  laud  as  his  child, 
and  in  the  new  name.  The  presumption  is  that  A.  procured  or  assented 
to  the  act  of  the  Legislature.* 

VIII.  A  widow  is  entitled  to  a  dower  or  a  child's  portion  in  certain 
land.  She  remains  in  possession  without  electing  until  her  right  of 
dower  is  barred.  The  presumption  is  that  she  elected  to  take  a  child's 
part,  this  being  more  beneficial  to  her." 

IX.  A.  delivers  a  sum  of  money  to  B.,  a  creditor  of  his.  The  pre- 
sumption is  that  B.  paj's  a  debt,  not  that  he  makes  a  loan  or  gilt.' 

X.  A  debtor  leaves  a  legacy  to  a  creditor.  This  is  presumed  to  be  a 
payment  of  the  debt,  and  not  a  gift.® 

XI.  Property  is  given  by  parent  to  a  child.  This  is  presumed  to  be  an 
advancement,  and  not  a  glft.^ 

XII.  A.  hands  a  sum  of  money  to  B.  The  law  wiU  not  presume  that 
this  is  a  loan.i" 

Johns.  421 ;  Church  v.  Gilman,  15  Wend.  656;  Jackson  v.  Boale,  20  Johns.  187;  Renfo 
V.  naiTison,  10  Mo.  411;  Mitchells.  Kyan,  3  Ohio  St.  377;  Barns  v.  Hatch,  3  N.  H.  304; 
Guard  v.  Bradley,  7  Ind.  600 ;  Brown  v.  Austin,  35  Barb.  341 ;  Mallory  v.  StoUer,  6  Ala. 
801;  Herbert  v.  Herbert,  Brecse,  282.  But  see,  Hulick  v.  Scovil,  9  111.  159;  Bennett 
V.  ^yalker,  23  HI.  97;  Welch  v.  Sackett,  12  Wis.  243  (1860). 

1  Kewton  v.  Cabery,  5  Oranch  C.  C.  632  (1840). 

-  Merrill  v.  Emery,  10  Pick.  507  (1830). 

3  Treat  v.  Treat,  35  Conn.  210  (1868). 

*  Governor  v.  Campbell,  17  Ala.  566  (1850) ;  Benning  v.  Nelson,  23  Ala.  801  (1853). 

6  Thrower  v.  Wood,  50  Ga.  459  (1874). 

6  Sewell  V.  Smith,  54  Ga.  567  (1875) ;  Sloan  v.  Whitaker,  .58  Ga.  319  (1877). 

7  Welch  V.  Seaborn,  1  Slark.  474  (1816);  Caryi?.  Geirish,4E6p.  9  (1801);  AuberttJ. 
Walsh,  4  Taunt.  493  (1812). 

8  Breton  i7.Cope,l  Beake,  43  (1791) ;  Cloud  v.  Clinkinbeard,  8  B.  Mon.  397;  48  Am. 
Dec.  397  (1848).    And  see  Zeiglcr  v.  Eckhert,  6  Pa.  St.  13 ;  47  Am.  Dec.  428  (1843). 

"  Autry  V.  Autry,  37  Ala.  618 ;  Mitchell  v.  Mitchell,  8  Ala.  421 ;  Butler  v.  Ins.  Co.  14 
Ala.  777;  Merrill  v.  Rhodes,  .37  Ala.  452;  Clements  v.  Hood,  57  Ala.  462  (1876) ;  Dill- 
man  V.  Cox,  23  Ind.  440  (1864) ;  Stevenson  v.  Martin,  11  Bush,  458  (187.5). 

1'^  Gerdingv.  Waiter,  29  Mo.  426  (1860).    Butsee  WliitCf.Sheldou,4Xev.  280  (1868.) 


RULE    70.]      rRESUMTTIOXB  FKOM  COURSE  OF  NATURE.  305 

XIII.  A.  sends  B.,  to  -whom  lie  is  not  indebted,  §5,000.  The  presump- 
tion is  that  this  is  a  loan  and  not  a  gift.^ 

XIV.  In  the  absence  of  C.  in  a  foreign  country,  F.  sent  to  the  wife  of 
C.  a  check  for  $500,  wiiich  was  collected  by  her.  The  presumption  is 
that  this  was  not  a  gift,  but  a  loan  to  the  wife  on  the  credit  of  the  hus- 
band.» 

XV.  A.,  upon  the  settlement  of  accounts  with  his  father,  gave  the 
latter  his  note  for  $425.  In  an  action  upon  this  note  by  the  representa- 
tives of  the  father,  A.  produces  the  note  canceled,  but  testifles  that  it  had 
not  been  paid.  There  is  no  presumption  that  it  had  been  released  by  the 
father.' 

XVI.  n.  and  D.  bought  certain  land  and  executed  a  mortgage  for  the 
purchase  money.  II.  subsequently  paid  the  debt,  and  took  an  assign- 
ment of  the  mortgage.  Another  person  subsequently  obtains  a  judg- 
ment against  D.  The  presumption  is  that  the  mortgage  is  not  merged 
in  the  fee,  as  this  would  be  against  H.'s  interest.* 

XVII.  A  bargain  in  which  the  rights  of  A.  are  varied  is  made,  A.  not 
being  present.    Tlie  presumption  is  that  A.  did  not  consent  to  it.* 

XVIII.  A.,  as  servant  of  B.,  sues  B.  for  his  wages.  The  fact  that  A. 
remained  in  B.'s  service  during  the  time  for  which  the  wages  are  claimed 
raises  a  presumption  that  he  performed  the  service  properly.® 

Incase  I.  it  was  said:  **  I  think  that  an  estate  can  not  be 
forced  on  a  man.  A  devise,  however,  being  prima  facie  for 
the  devisee's  benefit,  he  is  supposed  to  assent  to  it  until  he 
does  some  act  to  show  his  dissent.  The  law  presumes  that 
he  will  assent  until  the  contrary  is  proved  ;  when  the  con- 
trary, however,  is  proved  it  shows  that  he  never  did  assent 
to  the  devise,  and  consequently  that  the  estate  never  was 
in  him."  *^  Prima  facie i''  said  Abbott,  C.  J.,  "every 
estate,  whether  given  by  will  or  otherwise,  is  supposed  to 
be  beneficial  to  the  party  to  whom  it  is  given."  And  Bay- 
ley,  J.,  added  :  *'  The  law,  indeed,  presumes  that  the  estate 
devised  will  be  beneficial  to  the  devisee,  and  that  he  will 
accept  of  it  until  there  is  proof  to  the  contrary." 


I  Richardeon'9  Estate,  13  Phila.  241  (1370). 

»  Ficklin  v.  Carrington,  31  Gratt.  '210  (1878). 

s  Grey  r.  Grej-,  47  N.  Y.  552  (1872). 

*  Duncan  v.  Drury,  9  Pa.  St.  332;  49  Am.  Dec.  665  (1848). 

8  Mc.Vulty  r.  Ilurd,  86  N.  Y.  547  (1881). 

e  lioberts  v,  Brownrigg,  9  Ala.  106  (1846). 

20 


306  PRESmiPTIYE   EVIDENCE.  [rULE    70. 

In  case  XV.,  it  was  said  :  "  It  has  become  a  maxim  in  the 
law  that  nemo  donare  facile prmsumuntur .  To  sustain  the 
judgment  would  reverse  that  maxim.  There  is  nothing  left 
to  stand  upon  but  a  gift,  and  that  the  law  docs  not  pre- 
sume. Irrespective  of  the  possession  of  the  note,  there  is 
not  a  particle  of  evidence  tending  in  the  direction  of  this 
being  a  gift." 

In  case  XVI.  it  was  said:  "A  mortgage  is  not,  of  course, 
merged  by  coming  into  possession  of  the  owner  in  f ee.^  It 
depends  generally  upon  the  intention  of  the  parties  to  the 
arrangement  accompanying  the  operation,  either  of  assign- 
ment or  payment.  An  intent  to  prevent  the  merger  will  be 
presumed  whenever  it  is  the  interest  of  the  party  that  the 
incumbrance  should  not  be  sunk  in  the  inheritance.^  Here 
the  intent  of  the  mortgagor  and  mortgagee  was  quite  appar- 
ent that  the  security  or  incumbrance  should  be  kept  on  foot, 
because  the  mortgagee  assigned  it  to  the  recovering  mort- 
gagor. It  is  also  clearly  the  interest  of  the  mortgagor  that  it 
should  not  sink  in  the  inheritance.  If  it  should  be  so  held  an 
incumbrancer  would  get  part  of  the  proceeds  of  the  sale  in 
this  case  against  equity,  because  at  the  time  he  procured  his 
incumbrance  the  mortgage  was  indisputably  the  oldest  lien ; 
and  it  continued  so  up  till  the  payment  of  the  money  by 
Hart.  Why,  then,  should  the  judgment  against  Duncan, 
the  other  mortgagor,  who  had  really  no  equity  in  the  land, 
all  the  money  having  been  paid  by  Hart,  be  held  extin- 
guished by  Hart's  payment  of  the  money  contrary  to  the 
expressed  intent  of  the  parties,  merely  to  take  that  much 
out  of  his  pocket  in  favor  of  one  whose  whole  lien  was  sub- 
ject to  the  lien  of  the  mortgage?  If  he  or  anybody  el.-e 
had  bid  up  the  land  to  an  amount  exceeding  the  mortgage, 
then  he  would  have  got  his  money." 

In  a  Missouri  case  a  suit  was  brought  on  a  bond  given 
to   the  United  States.     There  was  no  law  authorizing  an 

1  Moore  v.  Harrisbnrg  Bank,  8  Watts,  138. 
«  Eicharda  v.  Ayore,  1  W.  &  S.  483. 


RULE    70.]       PKESUMPTIONS  FK03I  COURSE  OF  NATURE.  307 

officer  of  the  United  States  to  accept  such  a  bond.  It  was 
held  that  the  acceptance  of  the  bond  by  a  proper  officer 
would  nevertheless  be  presumed.^  The  court  said:  "In 
the  multiplied  transactions  of  the  government  of  the  United 
States,  in  both  the  executive  and  judicial  departments, 
many  cases  occur  in  which  it  is  deemed  necessary  and  pru- 
dent to  take  bonds,  though  there  is  no  statute  authorizing 
it;  *  *  *  such  bonds  would  stand  upon  the  same 
footings  as  the  bonds  in  the  cases  of  United  States  v.  Taii- 
gey;"^  United  States  v.  Bradley;^  Postmaster- General  v. 
Itice;^  Postmaster -General  v.  N'orvell.^  In  all  these  cases 
the  acceptance  of  the  bonds  was  presumed,  although  there 
was  no  law  authoriziu":  the  officer  to  take  them." 


1  Barnes  r.  Webster,  16  Mo.  258;  57  Am.  Dec.  232  (1852). 

2  5  Pet.  115. 

3  10  Pet.  343. 
<  Gilp.  561. 

6  Gilp.  120. 


CHAPTER    XY. 

THE  PRESUMPTION  OF  PAYMENT  AND  THE  DIS- 
CHARGE OF  OBLIGATIONS. 

RULE  71.  —  Independently  of  a  statute  of  limitations 
or  in  tlio  absence  of  one,  after  a  lapse  of  twenty 
years  the  law  raises  a  presumption  of  tlie  payment  of 
bonds  (A),  mortg^ages  (B),  legacies  (C),  taxes  (D),  judg- 
ments (E),  the  due  execution  of  a  trust  (F),  and  the 
performance  of  a  covenant  (G).^ 

Even  before  the  English  statute  of  34,  William  IV., 
which  limited  the  time  within  which  an  action  on  a  bond  or 
other  specialty  might  be  brought,  the  courts  had  established 
the  presumption  that  where  payment  of  such  an  instrument 
was  not  demanded  for  twenty  years,  and  there  was  no  proof 
of  payment  of  interest  or  any  other  circumstance  to  show 
that  it  was  still  in  force,  payment  or  release  would  be  pre- 
sumed.^ This  principle  has  since  then  become  established 
by  the  courts  both  of  the  United  States  and  of  England, 
the  period  being  fixed  at  twenty  years. ^ 


1  Also  the  pajnment  of  debts  generally  is  presumed  from  lapse  of  time.  McLellan 
V.  Crofton,  6  Me.  307  (1830) ;  Jefferson  County  v.  Ferguson,  13  111.  33  (1S51) ;  Taylor  v. 
Dagger,  66  AJa.  444  (18S0). 

2  Oswald  V.  Leigh,  1  T.  R.  270  (1786). 

3  Central  Bank  v.  Ileydorn,  48  N.  Y.  26a  (1872) ;  Brock  v.  Savage,  31  Pa.  St.  422 
(18.58) ;  Bellas  v.  Levan,  4  Watts,  205  (1835) ;  Tilghman  v.  Fisher,  9  Id.  441  (1840) ; 
Boyce  v.  Lake,  17  S.  C.  481  (1832) ;  Goodwyn  v.  Baldwin,  59  Ala.  127  (1877) ;  Lyon  v. 
Adde,  63  Barb.  89  (1872) ;  Jarvis  v.  Albro,  67  Me.  310  (1877) ;  Olden  v.  Hubbard,  34 
N.J.  (Eq.)  85  (1881);  Boon  v.  Pierpont,  28  Id.  (1877);  Downs  v.  Sooy,  Id.  55  (1877); 
Kay  V.  Pearce,  84  N.  C.  485  (1881) ;  Kodman  v.  Hoops,  1  Dall.  85  (1784) ;  Ilopkirk  v. 
Page,  2  Brock.  20  (1822);  Ludlow  v.  Van  Camp,  6  N.  J.  Eq.  113;  11  Am.  Dec.  529 
(1823) ;  and  see  Levy  v.  Merrill,  52  How.  Pr.  360  (1876) ;  Pattie  v.  Wilson,  25  Kas.  326 
(1881) ;  Cowie  v.  Fisher,  45  Mifh.  629  (1881) ;  Lyon  v.  Odell,  65  N.  T.  28  (1875) ;  Willing- 
ham  V.  Chick,  14  S.  C.  93  (1880).  "A  forbearance  lor  the  period  of  twenty  years, 
when  unexplained,  is  a  fact  from  which  payment  of  a  sum  demanded  ought  to  be 
presumed.  To  cite  cases  in  support  of  a  proposition  so  firmly  established  is  quite 
euperfluous."    Hosmer,  C.  J.,  in  Lynde  v.  Dennison,  3  Conn.  391  (1820). 

(308  ) 


IIULE    71.]  THE   TRESUMPTIUX    OF    PAYilENT.  309 

"These  presumptions  to  be  drawn  by  tlie  courts  in  the 
case  of  stulo  demands,"  says  Chancellor  Kent,  "are 
founded  in  substantial  justice  and  the  clearest  policy.  If 
the  party  having  knowledge  of  his  rights  will  sit  still  and 
without  asserting  them  permit  persons  to  act,  as  if  they  did 
not  exist,  and  to  acquire  interests  and  to  consider  them- 
selves as  owners  of  the  property,  there  is  no  reason  why 
the  presumption  should  not  be  raised.  It  is,  therefore,  well 
settled  that  the  presumption  that  a  demand  has  been  satis- 
fied prevails  as  much  in  this  court  as  it  does  at  law."  ^ 

"Every  presumption,"  says  the  Master  of  the  Rolls  in 
Pickering  v.  Stamford,"^  "  that  can  fairly  be  made,  shall 
be  made  against  a  stale  demand.  It  may  arise  from  the 
acts  of  the  parties,  or  the  very  forbearance  to  make  the 
demand  affords  a  presumption  either  that  the  claimant  was 
conscious  it  was  satisfied  or  intended  to  relinquish  it."  ^ 

"  The  rule  of  presumption,  when  traced  to  its  foundation, 
is  a  rule  of  convenience  and  policy,  the  result  of  a  neces- 
sary regard  to  the  peace  and  security  of  society.  No  per- 
son ought  to  be  permitted  to  lie  by  whilst  transactions  can 
be  fairly  investigated  and  justly  determined,  until  time  has 
involved  them  in  uncertainty  and  obscurity,  and  then  ask 
for  an  inquiry.  Justice  can  not  be  satisfactorily  done  when 
parties  and  witnesses  are  dead,  vouchers  lost  or  thrown 
away,  and  a  new  generation  has  appeared  on  the  stage  of 
life,  unacquainted  with  the  aS'airs  of  a  past  age,  and  often 
regardless  of  them.  Papers  which  our  predecessors  have 
carefully  preserved  are  often  thrown  aside  or  scattered  as 
useless  by  their  successors.  It  has  been  truly  said,  that  if 
families  were  compelled  to  preserve  them  they  would  accu- 
mulate to  a  burthensome  extent.  Hence,  statutes  of  limi- 
tations have  been  enacted  in  all  civilized  communities,  and 
in  cases  not  within  them,  prescription  or  presumption  is 

1  Chancellor  Kent  in  Giles  r.  Barcmorc,  5  Johns.  Ch.  645  (1821). 
s  2Ve8.  jr.  583  (1705). 

s  And  sec  Reeves  v.  Brymer,  6  Vos.  jr.  511  (ISCl) ;  Motz  v.  Morean,  13  Moore  P.  C. 
C.  376  (1859). 


310  PRESUMPTIVE   EVIDENCE.  [rULE    71. 

called  in  as  an  indispensable  auxiliar}'-  to  the  administration 
of  justice.  Courts  of  equity  consider  it  mischievous  to 
encourage  claims  founded  on  transactions  that  took  place  at 
a  remote  period.  It  therefore  grants  no  relief  after  a  great 
len^-th  of  time.  In  a  word,  the  most  solemn  muniments 
are  presumed  to  exist  in  order  to  support  long  possession  ; 
the  most  solemn  of  human  obligations  lose  their  binding 
efficacy  and  are  presumed  to  be  discharged  after  a  lapse  of 
many  years."  ^ 

In  B uchannan  Y.  Rowland, ^th.Q  early  cases  are  reviewed 
by  Kirkpatrick,  C.  J.:  "  "What,  then,"  says  he,  *' is  the 
ground  of  this  presumption  of  payment,  arising  from  length 
of  time,  to  what  cases  does  it  apply,  and  how  far  is  it  con- 
clusive ?  It  is  said  that  by  the  common  law  there  was  no 
stated  or  fixed  time  for  the  bringing  of  actions.  The  law 
was  always  open  ;  satisfaction  was  never  j)7-eswwze(^.  In  the 
progress  of  society,  however,  it  was  soon  found  necessary 
to  supply  this  deficiency  by  statute,  and  to  compel  men  to 
prosecute  their  rights  within  a  reasonable  time,  or  to  aban- 
don them  forever.  Hence,  we  find,  from  the  reign  of 
Henry  I.,  a  succession  of  statutes,  narrowing  the  latitude  of 
the  common  law  in  this  respect,  and  limiting  the  time  in 
which  actions  might  be  brought,  to  shorter  and  shorter 
periods,  until  they  had  brought  it  down,  in  most  cases,  to 
twenty-one  years  only,  and  in  many  to  a  still  shorter  time. 
The  reasons  upon  which  these  statutes  are  founded,  Sir 
William  Blackstone  tells  us,  are :  First,  because  the  law  will 
not  disturb  an  actual  possesssion  in  favor  of  a  claim  which 
has  been  suffered  to  lie  dormant  for  a  long  and  unreason- 
able time  ;  nam  vigilantihiis  et  non  dormientibus  suhserviunt 
leges;  secondly,  because  \\> presumes  that  he  who  has,  for  a 
long  time,  had  the  undisturbed  possession  of  either  goods 
or  lands,  however  wrongfully  obtained  at  first,  has  either 
procured  a  lawful  title  or  made  satisfaction  to  the  injured, 
otherwise  he  would  have  sooner  sued ;  and  thirdly,  because 

1  Foulk  V.  Brown,  2  Watts,  216  (1834).  ^  6  N.  J.  (L.)  721  (1820). 


RULE    71.]  THE  rRESUMPTION   OF   PAYilENT.  311 

it  judges  that  such  limitations  tend  to  the  prevention  of 
innumerable  perjuries,  the  preservation  of  the  public  tran- 
quility, and  what  it  values  perhaps  more  than  all,  the  sup- 
pression of  contention  and  strife  among  men,  nam  j^^'ccipue 
interest  reipiihlkoe  ut  finis  sit  litiam.  Taking  tlieso  great 
fundamental  principles,  then,  thus  recognized  by  successive 
statutes,  as  the  basis  of  their  conduct,  the  courts  of  justice 
build  up,  upon  them,  a  system,  extending  beyond  the  letter 
of  the  statutes  themselves.  They  were  professedly  founded, 
in  part.  Sir  William  Blackstone  says,  upon  the  presumption 
that  lawful  titles  may  have  been  acquired  under  possessions 
tortiously  taken,  and  that  satisfactions  may  have  been  made 
upon  contracts,  in  their  origin  indisputably  valid,  but  that 
the  evidence  thereof,  after  Ijnng  so  long,  may  be  destroyed 
by  the  all-devouring  tooth  of  time.  The  judges  only 
extended  this  principle  to  cases,  which,  though  not  within 
the  letter,  were  yet  within  the  reason  and  spirit  of  the  law. 
Lord  Hale,  I  think,  is  said  to  be  the  first  who  adventured 
upon  this  course ;  he  was  followed  by  Holt,  and  then  came 
Lord  Mansfield  with  a  still  bolder  step ;  the  judges  in 
chancery,  in  the  meantime,  keeping  equal  pace,  if  not  now 
going  beyond  the  courts  of  law.  In  the  case  of  King  v. 
S (evens,  one  of  the  corporators  of  St.  Ives,^  Lord  Mans- 
field said  there  was  no  direct  and  express  limitation  when 
a  bond  should  be  supposed  to  be  satisfied;  the  general 
rule  was,  indeed,  about  twenty  years,  but  it  had  been  left 
to  a  jury  upon  eighteen.  So,  though  there  was  no  stat- 
ute nor  fixed  rule  of  limitation,  as  to  the  length  of  time 
which  should  quiet  the  possessors  of  these  oflices,  yet  they 
ought  not  to  be  disturbed  after  a  great  length  of  time. 
In  the  "Winchelsea  Cases, ^  the  court  said  they  had  unani- 
mously resolved,  that  after  twenty  years  undisturbed  pos- 
session of  a  corporate  franchise,  they  would  grant  no  rule 
upon  a  corporator  to  show  by  what  right  he  held.  This 
resolution    was   founded,  not    on    any  express    provision 

1  Burr.  4337.  2  r.ur.  1692. 


312  PKESUSIPTITE   EYIDEXCE.  [kULE    71. 

of  the  law,  but  in  analogy  to  the  rules  established  in 
other  cases.  By  the  statutes  of  limitation,  they  said,  writs 
of  formedon  and  entry  into  lands,  were  confined  to 
twenty  years;  writs  of  errors  were  confined  to  twenty 
years ;  courts  of  equity  did  not  allow  the  redemption 
of  mortgages,  after  twenty  years  ;  bills  of  review  had  been 
generally  disallowed  after  twenty  years  ;  bonds  which  had 
lain  dormant  should  be  presumed  to  be  paid  after  twenty 
years;  ejectments  required  proof  of  possession,  within 
twenty  years;  and  so,  leaning  upon  these  cases,  they 
extended  the  doctrine,  by  analogy,  without  positive  statute, 
to  the  case  of  a  corporate  franchise,  then  depending  before 
them.  The  same  ground  has  been  taken,  and  the  same 
course  pursued  by  succeeding  judges,  down  till  this  day;  so 
that  nothing  can  be  better  settled  than  that  they  do  extend 
the  principles  of  these  statutes,  by  analogy  only,  to  cases 
within  the  reason  and  spirit,  though  not  within  the  letter 
of  them.  And  upon  this  analogy,  this  presumption  of  pay- 
ment, as  appears  by  Lord  Mansfield's  reasoning,  is  wholly 
founded. 

"  We  have  carried  the  limitation  of  actions,  still  further 
than  they  have  done  in  EngLand.  We  have  carried  it  so  far 
that  I  do  not  now  recollect  a  single  case,  unless,  indeed,  it  be 
the  one  before  us,  in  which  an  action  can  be  maintained 
after  twenty  years.  After  that  time,  latent  titles  to  land, 
unaccompanied  with  possession,  are  supposed  to  be  extinct 
mortgages  to  be  redeemed,  judgments  to  be  satisfied,  bonds 
to  be  paid.  Our  act  for  the  limitation  of  actions,  extends 
expressly  to  all  these.  Now,  if  in  England,  the  writs  of 
formedon^  and  entry  into  lands,  and  of  writs  of  error,  and 
actions  of  ejectment,  created  by  statute,  would  be  extended 
by  analogy,  to  corporate  franchises,  and  be  made  the  ground 
of  presumptive  payment  of  bonds  and  mortgages,  certainly 
it  can  not  bo  going  too  far  to  say,  that  when  our  act  of 
assembly  has  declared  that  no  scire  facias  shall  issue,  or 
action  of  debt  be  maintained,  upon  a  judgment  unless  within 


RULE    71.]  THE   TRESUMITIOX   OF  TAY^IENT.  313 

twenty  years  from  its  date,  and  that,  too,  upon  the  pre- 
sumption that  it  is  already  paid,  I  say  it  will  certainly  not  bo 
going  too  far,  to  extend  this  presumption  by  analogy,  to  the 
case  of  an  execution  upon  such  Judgment,  -which  has,  indeed, 
been  levied, but  has  lain  dormant,  now,  for  thirty  years  and 
more.  But,  suppose  these  points  to  be  gained,  that  the 
principle  of  the  statute  is  to  be  extended  by  analogy,  and 
that  the  presumption  of  payment  built  upon  it,  is  ai)plica- 
ble  to  the  case  before  us,  in  the  same  extent,  and  upon  the 
same  reason,  as  to  a  bond;  still  it  is  to  be  inquired  how  far 
that  presumption  is  conclusive,  and  whether  the  verdict  of  a 
jury  can  be  set  aside,  and  a  now  trial  granted,  because  they 
have  found  against  it.  It  is  said  by  the  plaintiff,  that  the 
presumption,  at  most,  is  but  evidence  upon  the  plea  of  pay- 
ment; that  it  may  be  strcngtcned  or  invalidated  by  con- 
comitant circumstances,  and  that  the  jury,  therefore,  are 
to  judge  of  its  strength  or  weakness,  and  to  pass  upon  it 
like  other  evidence.  And  though  this  may  be  a  just  view 
of  it  in  a  certain  sense,  yet,  upon  a  careful  examination, 
perhaps,  we  shall  find  it  rather  specious  than  solid,  so  far  as 
it  respects  the  present  case.  It  is  true  that  this  presump- 
tion may  be  cither  strengthened  or  invalidated  ;  nay,  indeed, 
it  may  be  ■wholly  overcome  by  circumstances ;  and  when 
such  circumstances  are  mere  matters  in  pais  to  be  proved 
by  witnesses,  the  jury  must  judge  both  of  the  truth  of  their 
existence  and  of  their  operation  and  effect  upon  the  pre- 
sumption. But  still,  when  the  length  of  time,  wholly  unac- 
counted for,  and  the  presumption,  therefore,  stands  in  its 
full  force,  it  is  conclusive;  and  the  conclusion  to  be  drawn 
from  it  is  a  conclusion  of  law,  to  be  declared  by  the  court, 
always  and  universally  the  same  ;  and  though  the  jury  must 
pass  upon  the  issue  of  solvit  vel  noiiy  yet  the  law  thus  to  be 
declared  to  them,  is  the  evidence  by  which  they  are  to  be 
governed;  they  are  not  by  vain  conjecture  or  imaginary 
reasonings  to  break  down  the  rules  of  property,  established 
by  law,  and  declared  by  the  court.     In  the  case  of  Hum- 


314  PKESUilTTIVE   EVIDENCE.  [rULE    71. 

ph  rrj/fi  V .  Humphreys,'^  Lord  Chancellor  Talbot  says ,  that  after 
twenty  years,  and  no  interest  paid  during  that  time,  a  bond 
shall  be  presumed  to  be  satisfied,  unless  something  appears 
to  answer  for  that  length  of  time.  And  after  a  verdict  at 
law,  he  granted  an  injunction  to  stay  proceedings  thereupon. 
So,-  on  a  demurrer  to  a  bill  to  redeem  a  mortgage,  u'here 
it  appeared  by  the  bilU  that  the  mortgagees  had  been  in 
]")osscssion  more  than  twenty  years,  the  court  held  that  the 
defendant  need  not  even  plead  the  length  of  time,  but  might 
demur;  and  that  no  redemption  could  be  allowed;  for  that 
as  twenty  years  would  bar  an  entry  or  ejectment,  so  it 
should  bar  the  right  of  redemption  also ;  making  the  pre- 
sumption, not  only  a  bar,  but  a  legal  bar,  conclusive  upon  a 
demurrer.  In  the  case  of  Searle  v.  Barrington^^  the  de- 
fendant had  pleaded  payment,  and  rested  upon  the  legal  pre- 
sumption arising  from  length  of  time,  the  bond  being  of 
more  than  twenty  years'  standing.  The  plaintiff  offered  as 
evidence,  to  encounter  this  presumption,  an  indorsement 
upon  the  bond  of  interest  paid  within  twenty  years,  but  this 
was  overruled  by  the  court,  and  a  nonsuit  ordered.  In  the 
reconsideration  of  this  case  at  bar,  the  court,  indeed,  held 
that  the  indorsement  on  the  bond,  of  interest  paid,  was  law- 
ful evidence,  and  ought  to  have  been  submitted  to  the  jury  to 
determine  whether  it  was  made  fairly  and  bona  fide^  or 
merely  to  evade  the  presumption;  but  there  was  no  pre- 
tense that  the  presumption  arising  from  length  of  time  was 
not  in  itself  a  good  bar,  or  that  standing  alone  it  was 
not  a  good  ground  of  nonsuit,  or  that  it  ought  to  have 
been  left  to  the  jury  to  determine  its  effect.  So  in  an 
anonymous  case,*  Holt,  C.  J.,  says,  if  a  bond  be  of  twenty 
years'  standing,  and  no  demand  proved  thereon,  or  good 
cause  shown  for  so  long  forbearance,  upon  solvit  ad  diem^ 
I  wnll  intend  it  paid.  From  those  cases,  without  going  mto 
a  multitude  of  others,  I  think  the  conclusion  irresistible. 


1  3  p.  Wms.  395.  3  Str.  813. 

a  Same  book,  286.  <  6  Mod.  22. 


RULE    71,]  THE   rRESUMPTION   OF   rAYllENT. 


315 


not  only  th.it  twenty  years  affords  a  presumption  of  pay- 
ment, but  that  that  presumption,  standing  alone,  is  conclu- 
sive in  the  law,  and  is  so  to  be  declared  by  the  court ;  and  not 
to  bo  left  to  the  jury  to  determine  its  effect.  It  is  true  that 
Buller,  in  a  later  case  in  the  King's  Bench,  seems  to  growl 
at  this  doctrine  a  little,  and  to  express  himself,  as  if  ho 
thought  the  jury  the  solo  judges  of  the  effect.  Whether  he 
was  led  into  this,  from  having  given  a  hasty  opinion  at  the 
nisijpriusj  or  from  what  other  cause  soever,  if  he  meant  to 
maintain  that  doctrine,  he  was  in  an  error.  It  is  contrary 
to  the  whole  course  of  decision  upon  that  subject,  as  well 
as  to  the  very  nature  of  the  thing  itself;  for  w^hatever  the 
law  presumes,  it  belongs  to  the  court  to  declare,  and  not  to 
the  jury." 

Illustrations. 


I.  By  statute  certain  bonds  are  given  by  an  heir  at  law  which  are  a 
lien  on  the  lands  descending  to  him.  After  twenty  years  the  presumption 
(they  not  being  within  the  limitation  law)  is  that  they  are  paid.i 

II.  A  suit  is  brought  in  1834  on  a  bond  made  in  1800,  a  paymenthaving 
been  made  on  It  in  1801.    The  presumption  is  that  it  is  paid.^ 

In  case  I.  it  was  said:  **  Bonds  given  by  the  heir  entitled 
to  elect  under  the  act  to  direct  descents  are  by  the  terms  of 
the  act  of  assembly  made  liens  on  the  lands  for  the  pur- 
chase of  which  they  are  given  until  paid;  and  therefore 
they  are  supposed  not  to  be  within  the  statute  of  limita- 
tions. But  though  not  within  these  statutes,  like  mort- 
gages, they  are  liable  to  presumptions  of  payment;  and  it 
is  thought  to  bo  quite  clear  that  when  the  circumstances 
are  such  as  would  induce  the  court  to  presume  the  payment 
of  a  mortgage,  the  same  presumption  would  be  made  with 
reference  to  these  bonds.     It  is,  says  Chancellor  Kent,  a 

1  Boyd  V.  Harris,  2  Md.  Ch.  210  (1850). 

2  Dciaiicy  v.  Uobinson,  2  Whart.  503  (1837) ;  Dennieton  r.  McKeen,  3  McLean,  053 
(IWO) ;  and  ecc  Kirkpatrlck  r.  Lanfri'hier,  1  Crar.ch  C.  C.  85  (1802) ;  Lowe  v.  Stowell. 
4  Joucs  (L.),  235  (1856)  ;  Kogcrs  v.  Bishop,  5  Blackf.  108  (1SJ9). 


ol()  PKESTOIPTIVE   EVIDENCE.  [rULE    71. 

■svell  settled  rule,  both  at  law  and  in  equity,  that  a  mortgage 
is  not  evidence  of  a  subsisting  debt,  if  the  mortgagee  never 
entered  and  there  has  been  no  interest  paid  or  demanded 
for  twenty  years.  These  facts  alone  authorize  and  require 
the  presumption  of  payment." 

B. 

I.  A.  claims  certain  land  under  a  mortgage  due  in  October,  1794,  and 
made  by  B.  It  appears  that  B.'s  heirs  were  in  1819  in  possession  of  the 
land.    The  presumption  is  that  the  mortgage  is  paid.^ 

In  case  I.  it  was  said:  "  In  furtherance  of  justice,  and 
the  more  effectually  to  secure  the  rights  of  the  parties  in 
the  investigation  of  questions  in  issue,  and  especially  in 


1  Howland  v.  ShurtlefF,  2  Mete.  26  (1940) ;  Jarvis  v.  Albro,  67  Me.  310  (1877) ;  Trash 
r.  White,  3  Brown  Ch.  201  (1791)  and  notes;  Christophers.  Sparks,  2  Jac.  &  W.  235 
(1820);  Gibson  v.  Fletcher,  1  Ch.  Cas.  59;  Leman  n.  Newnham.l  Ves.  sr.  51  (1747); 
Toplis  V.  Baker,  2  Cox  Ch.  113  (1789) ;  Jackson  v.  Wood,  12  Johns.  242  (1815) ;  Living- 
ston f.  Livingston,  4  Johns.  Ch.  287  (1820) ;  Wanmaker  v.  Van  Buskirk,  1  Saxt.  Ch. 
685;  23  Am.  Dec.  748  (1832).  In  Tripe  v.  Marcy,  39  N.  H.  449,  the  court  said,  that  the 
presumption  that  when  the  mortgagor  is  permitted  to  retain  possession  of  the  land 
for  twenty  years  without  interruption,  the  mortgage  debt  has  been  paid  or  had  no 
valid  existence  is  established  on  great  authority,  citing  Trash  v.  White,  3  Brown  Ch, 
2SD;  Christophers.  Sparks,  2  Jac.  &  W.  10;  Hughes  v.  Edmonds,  9  Wheat.  497;  Dexter 
V.  Arnold,  3  Sum.  152;  Dnnham  v.  Minard,  4  Paige,  443;  Bacon  v.  Mclntyre,  8  Mete. 
86;  Heyer  v.  Pruyne,  4  Paige,  443;  Higginson  v.  Mein,  4  Crauch,  415;  Collins  v. 
Tenney,  7  Johns.  279;  Jackson  v.  Davis,  5  Cow.  130.  "  But  we  are  not  prepared  to 
hold  that  this  presumption  arises  short  of  twenty  years  from  the  time  the  mortgage 
debt  becomes  due,  otherwise  we  might  be  asked  to  presume  a  debt  paid  before  the 
stipulated  time  of  payment  had  arrived.  This  presumption  arises  from  the  long 
delay  to  enforce  payment;  but  surely  no  such  delay  can  be  charged  until  the  time 
has  arrived  when  the  creditor  is  entitled  to  demand  it.  In  this  respect  the  presump- 
tion accords  with  the  general  provision  of  our  limitation  laws  which  limit  suits  to 
the  time  prescribed  after  the  cause  of  action  has  accrued.  Upon  these  principles 
no  presumption  of  payment  exists  in  this  case.  When  the  mortgagee  is  in  posses- 
sion, the  right  of  the  mortgagor  will  be  barred  in  twenty  years  from  the  entry  after 
breach  of  condition.  So  if  the  mortgagee  suffer- the  mortgager  to  remain  in  posses- 
sion twenty  years  after  breach  of  condition,  payment  is  presumed.  In  both  cases 
the  time  is  reckoned  from  the  breach  of  condition.  In  the  first  the  mortgagee  is 
usually  entitled  to  the  possession  upon  the  execution  of  the  mortgage,  and  until  the 
debt  becomes  due  the  mortgagor  can  not  by  payment  entitle  himself  to  enter.  He 
can  of  course  then  do  nothing  to  interfere  with  the  mortgagee's  possession,  and 
until  the  debt  has  become  due,  no  presumption  can  arise  against  him."  Tripe  v. 
Marcy,  supra;  Evans  v.  Huff,  5  N.  J.  (Eq.)  300  (1840).  No  such  presumption  of 
payment  can  arise  against  a  mortgagee  or  his  assigns  in  possession,  when  the  mort- 
gagor became  insolvent  and  died  before  the  debt  became  due,  and  when  his  vendee 
of  the  equity  of  redemption  also  became  insolvent  before  the  maturity  of  the  debt 
removed  from  the  Stale,  and  never  afterwards  returned.  Brobst  v.  Brock,  10  Wall. 
519  (1870). 


RULE  71.]     THE  rRESUMPTIOX  OF  PAYMENT.  317 

ancient  transactions  the  law  calls  to  its  aid  the  doctrine  of 
presumption  under  which  the  jury  arc  authorized  to  find  the 
existence  of  certain  facts  as  to  which  there  is  no  direct 
evidence,  but  which  are,  under  the  rules  of  law,  to  be  reason- 
ably inferred  from  certain  other  facts  which  are  well  estab- 
lished by  the  evidence  in  the  case.     Tho^^c  ])rcsumptions 
when  they  arise  from  lapse  of  time  and  forbearance  to 
assert  claims  rest  upon  the  principle  so  strongly  pervading 
the  course  of  men's  actions  in  relation  to  their  rights  that 
individuals  will  appropriate  to  their  own  use  and  subject  to 
their  own  control  that  to  which  they  have  the  legal  right, 
and  that  an  abandonment  for  a  great  length  of  time  of  a 
legal  interest  without  any  attempt  to  enforce  it,  furnishes  rea- 
sonable ground  for  the  inference  that  the  party  has  in  some 
way  parted  with  his  interest  or  discharged  his  claim.     This 
principle,  so  reasonable  in  itself,  operates  beneficially  in 
quieting  controverted  titles  and  closing  stale  demands,  and 
also  protects  individuals  from  gross  injustice,  arising  from 
loss  of  evidence  as  to  ancient  transactions.     A  question  has 
been  sometimes  raised  whether  the  doctrine  of  presumption 
arising  from  the  lapse  of  time  and  total  neglect  to  take  any 
measure  to  enforce  a  claim,  could  properly  be  applied  to 
the  case  of  a  mortgage  of  real  estate ;  and  in  some  of  the 
Eno-lish  cases  the  doctrine  was  advanced  that  the  common- 
law  presumption  applicable  to  bonds,  judgments,  etc.,  aris- 
ing from  a  delay  of  twenty  years  to  enforce  the  same  did 
not  apply  in  the  case  of  a  mortgage,  as  in  such  cases  the 
legal  estate  was  in  the  mortgagee  and  the  mortgagor  was  a 
mere  tenant  at  will,  and  his  possession  was  therefore  the 
possession  of  the  mortgagee.     But  this  doctrine  was  repudi- 
ated by  Lord  Thurlow  in  the  case  of  Trash  v.  WJdte,^  and 
by  the  Master  of  the  Rolls  in  Christopher  \.  Sparks;^  in  very 
stron<r  lann-uajje ;  and  the  cases  of  debts  secured  by  mort- 
gages  are  placed  on  the  same  footing  with  other  demands, 
and  held  liable  to  be  defeated  by  the  same  presumptions 

1  3  Brown  Ch.  289.  -  '  J^c.  &  W.  223. 


318  PRESUMPTIVE  EVIDENCE.        [rULE  70. 

arising  from  lapse  of  time  and  laches  of  the  mortgagee. 
In  our  own  court  the  principle  was  applied  in  the  case  of 
Inches  v.  Leonard^  under  circumstances,  however,  of  greater 
delay,  than  in  the  present  case  in  asserting  the  claim  of  the 
mortgagee.  It  was  a  case  of  a  mortgage  of  forty  years' 
standing,  where  there  had  been  no  possession  by  the  mort- 
gagee, and  no  attempt  in  the  meantime  to  enforce  the  mort- 
gage ;  and  the  court  held  that  the  plaintiff  could  not  maintain 
the  action.  The  doctrine  that  where  the  mortfrajxce  has 
never  entered  under  his  mortgage  and  no  interest  has  been 
l^aid  for  twenty  years  on  the  same,  these  circumstances 
authorize  the  presumption  in  fact  that  the  mortgage  has 
been  discharged  by  payment  or  otherwise  is  one  of  frequent 
application."  ^ 

In  Wanmaker  v.  Van  Buskirk,^  it  was  said  :  "  From  all 
these  decisions  there  can  be  no  doubt  that  a  presumption 
of  payment  may  be  raised  by  lapse  of  time  against  a  mort- 
gagee, and  the  better  opinion  would  seem  to  be  that  such 
presumption  would  attach  at  the  end  of  twenty  years  by 
analogy  to  the  rule  relating  to  bonds.  Chancellor  Kent,  in 
the  case  cited,  appears  to  favor  this  opinion,  and  to  incline 
with  the  Master  of  the  Rolls  in  the  case  of  Boehm  v.  Wood 
to  put  the  mortgagor  and  mortgagee  when  in  possession  in 
the  same  plight.  The  rule  of  presumption  has  long  been 
adopted  in  favor  of  the  mortgagee ;  so  that  when  he  has 
been  in  possession  twenty  years,  the  mortgagor  will  not  be 
let  in  to  redeem.  I  see  no  objection  to  the  adoption  of  a 
rule  by  this  court  that  a  lapse  of  twenty  years,  without  pay- 
ment or  demand  of  principal  or  interest,  shall  raise  a  pre- 
sumption of  payment  in  the  case  of  a  mortgage.  Our 
statute  bars  the  recovery  of  the  debt  after  sixteen  years ; 
and  after  twenty  years  the  right  of  entry  is  gone,  and  the 
mortgage  is  no  longer  a  subsisting  title ;  why  should  the 


1  13  Mass.  379. 

2  Collins  V.  Terry,  7  Johns.  278;  Jackson  v.  Wood,  12  Id.  242;  Jactson  v.  Pratt,  10 
Id.  ."381 ;  Giles  v.  liarremorc,  5  Johns.  Ch.  552. 

3  1  Saxt.  Ch.  (N.  J.)  6tS5  (1832). 


EULE    71.]  THE   TKESUMPTION   OF   TAYMENT.  319 

mortgage  still  be  valid  in  a  court  of  equity.  Cut  I  am  not 
called  on  to  establish  such  a  principle  or  to  say  that  the 
English  doctrine  is  strictly  applicable  here.  Admitting  it 
to  be  so,  and  this  case  to  be  within  it,  it  docs  not  determine 
the  right  of  the  parties.  It  raises  a  presumption  that  the 
mort2ao;e  is  satisfied,  and  I  am  willino:  to  admit  that  such 

DO  '  O 

presumption  is  raised  in  favor  of  the  pa3'racnt  of  this  mort- 
gage, by  the  lapse  of  twenty-three  years  without  payment 
or  demand  of  interest.  It  is,  nevertheless,  but  a  presump- 
tion. Standing  alone,  without  explanation,  it  would  pre- 
vail, and  be  tantamount  to  absolute  proof,  as  well  in  equity 
as  at  law  ;  and  this  not  because  of  any  actual  bchcf  that 
the  debt  has  been  paid,  but  because  it  is  right  that  posses- 
sion should  be  quieted.  But  the  presumption  may  be 
rebutted  by  a  variety  of  circumstances." 

C. 

I.  It  is  proved  that  a  testator  long  since  dead  left  considerable  per- 
sonal property.  The  presumption  arises  that  legacies  charged  upon  his 
real  and  personal  estate  have  been  paid.^ 

II.  B.  by  his  will  left  a  legacy  to  F.  appointing  C.  his  executor.  The 
legacy  was  to  be  paid  in  1803.  In  1829  F.  brought  a  suit  against  C.  for 
the  legacy.    The  presumption  is  that  it  was  paid.* 

'♦  Legacies,"  it  was  said  in  case  I.,  *'  not  being  within 
the  statute  of  limitations,  fall  within  the  rule  of  presump- 
tion. After  a  lapse  of  twenty  years  bonds  and  other 
specialties,  merchants'  accounts,  legacies,  mortgages,  judg- 
ments, and  indeed  all  evidences  of  debt  excepted  out  of  the 
statute  are  presumed  to  be  paid.  The  court  will  not 
encourage  the  laches  and  indolence  of  parties,  but  will  pre- 
sume after  a  great  length  of  time  some  compensation  or 
release  to  have  been  made." 


1  Fnhrtnan  t-.  London,  13  S.  &  R.  380;  15  Am.  Dec.  60S  (1825) ;  Hayes  v.  WhUall,  13 
N.  J.  (Kq.)  211  (1S61). 

2  Foulk  V.  Brown,  2  Watts,  212  (1S34) ;  Bentley'a  Appeal,  99  Pa.  St.  504  (lSS2)i 
Bonner  v.  Young,  6S  Ala.  35  (1S80). 


320  PRESUMPTIVE   EVIDENCE.  [rULE    71. 

D. 

I.  It  appears  that  from  1807  to  1813,  H.  was  an  inhabitant  of  the  town 
of  S.,  and  was  assessed  for  taxes.  In  a  suit  brought  in  18-iO,  the  presump- 
tion is  that  these  taxes  are  paid.^ 

II.  An  assessment  was  made  in  1837  on  the  property  of  A.  The  pre- 
sumption is,  in  18G2,  that  it  has  been  paid.^ 

"Taxes,"  it  was  said  in  case  I.,  "can  not  have  any 
higher  character  than  debts  due  by  specialty  and  of 
record.  As  to  these  a  presumption  of  payment  arises 
after  the  lapse  of  twenty  years  if  there  is  no  evidence 
to  repel  it,  and  to  show  that  the  debt  is  still  unsatisfied. 
The  assessment  is  in  the  nature  of  a  judgment,  and  the 
warrant  for  the  collection  operates  like  an  execution. 
There  is  no  reason,  therefore,  why  the  same  principle 
should  not  be  applied  in  both  cases." 


E. 

I.  A  suit  is  brought  on  a  judgment  recovered  more  than  twenty  years 
before.    The  presumption  is  that  it  has  been  paid.^ 

II.  A  judgment  rendered  in  1842  is  sued  on  in  18C8.    The  presumption 
is  that  it  is  paid.* 

F. 

I.  A  man  conveyed  in  1826  his  interest  in  some  land  to  a  trustee  for 
the  payment  of  certain  creditors  and  the  balance  to  his  wife.     In  1847 


1  Hopkinton  t>.  Springfield,  12  N.  H.  328  (1841). 

2  Fisher  v.  Mayor  of  New  York,  6  Hun,  64  (1875) ;  Hopkington  v.  Springfield,  12 
N.  H.  328  (1841) ;  Dalton  v.  Bethlehem,  20  N.  H.  505  (18J6). 

3  Bird  V.  Inslee,  23  N.  J.  (Eq.)  363  (1873) ;  Kinsler  v.  Holmes,  2  S.  C.  483  (1871) ; 
Miller  v.  Smith,  16  Wend.  425  (1836) ;  Inches  v.  Leonard,  12  Mass.  379  (1815) ;  Barned 
V.  Barned,  21  N.  J.  (Eq.)  245  (1870).  From  less  than  twenty  years  the  presumption 
does  not  arise.  Daby  v.  Erickson,  45  N.  Y.  786  (1871) ;  Lesley  v.  Nones,  7  S.  &  R.  410 
(1821). 

<  Chapman  «.  Loomis,  36  Conn.  450  (1770),  and  see  Wills  v.  Gibson,  7  Pa.  St.  154 
(18-17) ;  Ilolman's  Appeal,  24  Pa.  St.  174  (1854) ;  Rhodes  v.  Turner,  21  Ala.  210;  Bar- 
nett  V.  Tarrancc,  26  Ala.  463 ;  Blackwell  v.  Blackwell,  33  Ala.  57 ;  McCartney  v.  Bone, 
40  Ala.  533 ;  Ragland  v.  Morton,  41  Ala.  344  ;  Worlcy  v.  High,  40  Ala.  171 ;  Yarnell  v. 
Moore,  3  Cold.  173  (18CG) ;  Bender  v.  Montgomei-y,  8  Lea,  586  (1881). 


RULE    71.]  THE   TRESU-MrTION   OF   I'AYMEXT.  321 

the  law  will  presume  that  the   debts  have   bceu  paid  and  the   trust 
executed.^ 

G. 

I.  A  covenant  to  deliver  property  i'i  made  by  A.  to  B.  After  a  lapss 
of  time  the  presumption  of  oerformauce  arises.' 

In  case  I.  it  was  said:  "  It  is  contended  tliat  the  presump- 
tion is  applicable  only  to  the  case  of  an  obligation  for  the 
payment  of  money,  and  not  to  a  covenant  for  the  delivery 
of  property,  or  the  performance  of  other  duty.  It  is  be- 
lieved that  the  reported  cases  are  generally  of  the  former 
description;  but  the  principle  upon  which  the  presumption 
is  founded  applies  as  strongly,  if  not  more  so,  to  those  of 
the  latter  kind.  Payment  of  a  bond  for  money  after  a 
lapse  of  twenty  years,  where  there  has  been  no  demand  on 
one  side,  or  acknowledgment  on  the  other,  and  no  circum- 
stance is  shown  which  could  have  hindered,  or  impeded  the 
recovery,  is  presumed,  because  the  existence  of  the  debt 
under  those  circumstances,  is  incompatible  with  the  ordinary 
motives  and  the  general  course  of  human  conduct.  The 
presumption  of  payment,  in  such  a  case,  arises,  therefore, 
from  what  is  commonly  observed  to  happen  in  the  trans- 
actions between  man  and  man.  Now,  as  a  covenant  for 
the  payment  of  property  may  in  general  be  easily  per- 
formed by  the  one  party,  and  in  proportion  to  the  value, 
must  be  of  the  same  importance  to  the  other,  to  have  it 
performed,  as  if  it  were  a  bond  for  the  payment  of  money, 
the  lapse  of  time  must  afford  a  strong  reason  to  infer  a 
performance  in  the  one  case  as  it  does  to  infer  a  payment 
in  the  other;  and,  accordingly,  experience  shows  that 
there  is  as  great   a  degree  of  punctuality  commonly  ob- 


1  Drysrtale'8  Appeal,  U  Pa.  St.  531  (1S50) ;  Webb  v.  Dean,  21  Id.  31  (1S53) ;  Pro- 
vost V.  Gratz,  G  Wheat.  481  (1S45) ;  Coleinau  r.  Lane,  26  Ga.  615  (1S58).  And  that  an 
estate  was  duly  distributed.  Hooper  v.  Howell,  52  Ga.  322  (1874).  And,  after 
twenty  year.->,  that  an  administrator  was  qualillcd.  Battles  f.  Ilolley,  0  Me.  145 
(18'20);  or  has  made  a  settlement.  Austin  v.  Jordan,  35  Ala.  642  (1860);  Gregg  f. 
Bethea,  6  P.irt.  (Ala.)  9  (18;;7). 

a  Phillips  V.  Morrison,  3  Bibb,  105;  6  Am.  Dec.  038  (1813). 

21 


322  PRESUMITIVE  EVIDENCE.        [rULE  72. 

served  in  the  performance  of  such  a  contract,  as  there  is 
in  the  payment  of  a  debt  due  by  bond." 

11UL.E  72. — The  presumption  tinder  Rule  71  does  not 
arise  from  lapse  of  time  alone  short  of  twenty  years ; 
but  a  shorter  time,  in  connection  with  other  circum- 
stances, may  raise  a  presumption  of  fact  that  payment 
has  heen  made. 

'<  When  we  hear  of  less  than  twenty  years  being  left  to 
the  jury,"  it  was  said  in  a  Pennsylvania  case,  "  it  must  be 
understood  to  have  been  in  connection  with  other  circum- 
stances." ^     This  seems  to  be  well  settled.^ 

"A  legal  presumption  of  payment  of  a  bond  or  covenant 
given  for  the  payment  of  money  does  not  arise  from  mere 
lapse  of  time  where  the  bond  or  covenant  has  not  been  due 
for  twenty  years  before  commencement  of  suit  or  procecd- 
ino"s  for  the  recovery  of  the  amount  thereby  due  and 
payable.  If  a  shorter  period,  even  a  single  day  less  than 
twent  years,  has  elapsed,  the  presumption  of  satisfaction 
from  mere  lapse  of  time  does  not  arise.  While  the  mere 
lapse  of  twenty  years  without  explanatory  circumstances 
affords  a  presumption  of  law  that  the  debt  is  paid,  even 
though  it  be  due  by  specialty,  still  payment  may  be  inferred 
by  the  jury  from  circumstances  with  the  lapse  of  a  shorter 
period  of  time  than  twenty  years.  When  an  action  is 
brought  on  a  bond  or  covenant  for  the  payment  of  money, 


1  Henderson  v.  Lewis,  9  S.  &  R.  384  (1823) ;  Ross  v.  McJunkin,  14  Id.  364  (1286) ; 
Boss  V.  Darby,  4  Munf.  (Va.)  428  (1815). 

2  Brubakur  v.  Taylor  76  Pa.  St.  83  (1874) ;  and  see  Groves  v.  Steel,  3  La.  Ann. 
280  (1848) ;  Briggs'  Appeal,  93  Pa.  St.  485  (1880) ;  Sadler  v.  Kennedy,  11  W.  Va.  187 
(1877)  ;  Colwell  v.  Pi^indle,  Id.  307  (1877) ;  Daby  v.  Erickson,  45  N.  Y.  786  (1871) ;  Clark 
V.  Hopkins,  7  Johns.  556  (ISll) ;  Stockton  v.  Johnson,  6  B.  Mon.  408  (1846).  In  Didlake 
v.  Roljb,  1  Woods,  682,  Hill,  J.,  said:  "Aside  from  the  statute  of  limitations,  *  *  * 
the  rule  is  well  settled  that  after  a  debt  has  remained  due  and  payal)le  for  sixteen 
years,  the  law  holds  such  lapse  of  time  aa  prima  facie  evidence  of  payment,  which 
prima  facie  evidence  may  be  rebutted  by  proof  of  a  subsequent  promise  to  pay,  or 
Bome  reasons  why  suit  was  not  brought;  and  after  the  lajise  of  twenty  years  the 
presumption  of  payment  becomes  conclusive."  It  would  be  hard  to  say  where  the 
ju'lgc  found  such  a  rule  announced  as  well  settled.  It  is  loose  language  of  this  kind 
in  judicial  opinions  that  occasions  so  much  confusion  and  uncertainty  in  the  law. 


RULE    72.]  THE    PRESUMPTION    OF    PAYMENT.  323 

if  twenty  years  elapse  between  ttic  time  of  its  becoming 
due  and  of  the  institution  of  the  action  or  proceeding,  the 
defendant  may  without  pleading  the  statute  of  limitations 
rely  upon  presumption  of  payment ;  and  upon  issue  joined 
on  plea  of  payment,  payment  may  be  inferred  by  the 
court  or  jury  from  circumstances  coupled  with  a  lapse 
of  a  shorter  period  than  twenty  years. ^ 

In  CoJsdl  V.  Budd^^ljOvCL  Ellenborough  said:  "After  a 
lapse  of  twenty  years  a  bond  will  be  presumed  to  be  satis- 
fied ;  but  there  must  either  be  a  lapse  of  twenty  years,  or 
less  time,  coupled  with  some  circumstance  to  strengthen 
the  presumption.  Here,  if  it  has  been  proved  that  the 
parties  had  accounted  together  after  the  money  became 
payable,  it  might  have  been  inferred  that  it  was  included 
in  the  settlement;  but  as  there  is  no  evidence  of  this,  and 
as  twenty  years  have  not  elapsed  since  the  bond  was  for- 
feited, it  can  not  be  considered  as  discharged." 

IllustratiOTis. 

I.  K.  gave  C.  in  1837  a  sealed  note  payable  in  sixty  days.  After  both 
K.  and  C.  A%ere  dead  an  action  was  brought  (in  1852)  on  this  note.  C. 
had  a  running  account  at  K.'s  store  from  1836  to  1839,  and  payments 
were  made  to  amounts  more  than  the  note  durinc:  this  time.  K.  resided 
near  C.  until  his  death.  These  facts  raise  the  presumption  that  the  note 
was  paid.* 

II.  An  action  is  brought  on  a  bond  payable  in  installments.  Nineteen 
years  and  ten  months  have  elapsed  since  the  last  installment  became  due, 
and  another  installment  had  become  payable  more  than  twenty  years 
before  the  suit  was  brought.  The  judge  instructed  the  jury  that  as  to 
the  last  installment  they  may,  and  as  to  the  other  they  must,  presume 
payment.* 

III.  A  judgment  is  recovered  in  1857.  In  1874  (sixteen  years),  a  scire 
facias  is  issued  to  revive  it.  The  defendant  swears  that  he  expected  to 
prove  that  it  had  been  fully  paid  out  of  the  proceeds  of  a  sheriff's  sale 
of  his  land,  in  the  proceeds  of  which  the  plaintiff  had  participated;  that 


1  Colwell  V.  Prindle,  19  W.  Va.  640  (1SS2) ;  citing  Sadler  v.  Kennedy,  11  Id.  1S7; 
Perkins  r.  Il.iwkins,  9  Gratt.  656;  Goldhawk  v.  Duanc,  2  Waoh.  C.  C.  323. 
=  lC:iun'.27  (1S07). 

3  King  r.  Coulter,  2  Grant's  Gas.  77  (1853). 
<  Miller  r.  Evans.  2  Cranch  C.  C.  72  (1813). 


324  PRESUMPTIVE   EVIDEXCE.  [UULE    72. 

he  can  not  state  the  payments,  being  unable  after  search  to  obtain  the 
sheriff's  docket.     The  presumption  of  payment  arises. ^ 

IV.  A  transcript  of  a  justice  of  the  peace  is  filed  in  a  Superior  Court 
nineteen  years  after  the  judgment  was  rendered.  The  justice  is  not 
called  nor  the  docket  produced,  and  there  is  nothing  to  show  whether  an 
execution  has  ever  been  issued.     The  presumption  arises  of  payment.^ 

V.  A  debt  on  a  bond  due  in  eighteen  years  and  a  half  Is  sued  on.  It 
appears  that  during  this  time  the  creditor  was  a  poor  man  and  the  debtor 
a  rich  one.    The  presumption  of  payment  arises.^ 

VI.  R.  sues  G.  on  a  note  payable  in  18G0;  the  action  is  brought  in 
1872.  On  several  occasions  after  the  note  matured  R.  came  to  G.,  wanting 
to  sell  him  some  stock  in  a  company,  on  the  ground  that  he  needed  the 
money,  and  after  much  persuasion  G.  purchased  the  stock.  Nothing  was 
said  about  the  note.     The  presumption  arises  that  the  note  was  paid.* 

In  case  I.  it  was  said;  "It  was  fifteen  years,  four 
months  and  twenty-five  days  after  the  sealed  note  of  the 
plaintiff 's  testator  matured  before  this  action  was  instituted 
for  its  recovery.  No  legal  presumption  of  payment,  such 
as  unrebutted  the  court  would  be  bound  to  declare  as  a 
conclusion  of  law,  arose  in  that  time,  for  the  authorities 
all  agree  in  fixing  twenty  years,  from  analogy  to  the 
Eufjli.-^h  statute  of  limitations  concerninoj  real  estate,  as 
the  period  necessary  to  such  a  presumption.  But  the 
question  is  whether  the  time  that  did  elapse  was  competent 
in  connection  with  such  circumstances  as  were  offered  to  go 
to  the  jury  as  ground  for  their  presuming  payment  of  the 
note.  *  *  *  Xhe  competency  of  such  evidence  does 
not  depend  on  a  particular  period  of  years,  though  its 
effect  will  be  proportioned  to  their  number.  The  pre- 
sumption strengthens  as  the  time  approaches  to  twenty 
years,  and  the  circumstances  needed  to  establish  it  may  be 
measured  by  a  diminishing  scale.  The  further  the  time 
stops  short  of  twenty  years  the  more  cogent  and  decisive 
must  be  the  circumstances  relied  on.  Just  as  the  further 
we  advance   bevond   twenty  years  we  require  more  per- 

1  Moore  v.  Smith,  81  Pa.  St.  183  (1876). 

2  Diamonrl  v.  Tobias,  12  Pa.  St.  312  (1849). 
2  Hughes  V.  Hughes,  54  Pa.  St.  241  (1867). 
<  Gamier  v.  Ilenner,  51  lad.  374  (1873). 


RULE  72.]     THE  rKESUMPTION  OF  PAYMENT.  325 

su.asive  circumstances  to  rebut  the  legal  presumption. 
Twenty  years  assumed  as  the  point  for  that  presumption, 
the  scale  is  reversed  by  which  wo  measure  tho  circum- 
stances that  tend  to  establish  or  countervail  it.  In  both 
instances  it  is  for  the  jury  to  apply  tho  proofs  under  the 
direction  of  the  court.  If  evidence  bo  oifcred  which,  in  the 
judgment  of  the  court,  will,  in  connection  with  the  lapse 
of  time,  reasonably  tend  to  convince  the  jury  that  the 
sealed  debt  has  been  paid  short  of  twenty  years,  or  that  it 
has  not  been  paid,  notwithstanding  that  period,  it  is  the 
duty  of  the  court  to  receive  it,  and  to  submit  it  to  the  jury 
with  such  instruction  as  shall  enable  them  to  estimate  it  at 
what  it  is  reall}'  Avorth.  The  point  to  be  attained  is  moral 
conviction  of  a  fact,  and  whilst  it  is  not  to  be  founded  on 
evidence  insufficient  to  convince  reasonable  men,  we  are 
not  to  exact  mathematical  certainty,  nor  to  expect  more 
than  moral  demonstration." 

"More  than  sixteen  years,"  it  was  said  in  case  HI., 
♦'  had  elapsed.  A  legal  presumption  of  payment  does  not 
indeed  arise  short  of  twenty  years,  yet  it  has  been  often 
held  that  a  less  period,  with  persuasive  circumstances  tend- 
ing to  support  it,  may  be  submitted  to  a  jury  as  a  ground 
for  a  presumption  of  fact." 

Incase  IV.  it  was  said:  "The  rule  is  well  established 
that  where  the  period  is  short  of  twenty  years  the  pre- 
sumption of  payment  must  be  aided  by  other  circum- 
satnces  beyond  a  mere  lapse  of  time.  But  exactl}'  what 
these  circumstances  may  bo  never  has  been  nor  never  will 
be  defined  by  the  law.  There  must  be  some  circumstances, 
and  where  there  are  any  it  is  safe  to  leave  them  to  the  jury. 
Here  there  were  several  circumstances.  No  certificate  was 
given  by  the  justice  that  he  had  issued  execution,  to  which 
there  was  a  return  of  nuJhi  bona;  and  this  was  important, 
as  the  record  still  remained  before  the  justice,  who  might 
receive  the  money  or  collect  it  by  execution.  And  there 
was  the  pregnant  circumstance  that  the  plaintiff  produced 
hearsay  evidence  that  the  transcript  was  genuine,  and  that 


326  PRESUMPTIVE  EVIDENCE.     •   [rULE  72. 

the  justice  had  said  that  the  doclvet  was  lost.  The  justice 
Avas  not  produced  himself  to  show  that  the  docket  was 
lost  and  that  search  was  made  for  it.  This  would  have 
been  unnecessary  if  the  transcript  had  been  entered  in  any 
reasonable  time ;  but  after  the  lapse  of  nineteen  years  and 
and  seven  months  it  would  seem  to  be  a  reasonable  duty  on 
the  part  of  the  plaintiff,  and  the  absence  of  which  might 
fairly  be  taken  into  consideration.  *  *  *  Qn  the 
whole,  we  think  the  judge  did  not  err  in  submitting  all 
the  circumstances  in  evidence  to  the  jury,  from  which,  if 
they  were  satisfied,  they  might  infer  or  presume  payment." 

In  case  V.  it  was  said  :  "  That  a  complete  legal  presump- 
tion of  payment  of  a  bond  or  other  instrument  of  like 
nature  does  not  arise  short  of  twenty  years  is  well  settled ; 
but  it  has  also  been  well  settled  that  a  shorter  period, 
aided  by  circumstances  which  contribute  to  strengthen  the 
presumption  of  payment  by  lapse  of  time,  may  be  sub- 
mitted to  a  jury  as  grounds  for  the  presumption  of  the 
fact  of  payment.  Slight  circumstances  may  be  given  in 
evidence  for  that  purpose  in  proportion  as  the  presumption 
strengthens  by  the  lapse  of  time;  but  still  they  must  be 
such  as  aid  the  presumption  arising  from  time.  They  must 
be,  as  it  is  said,  persuasive  that  the  time  would  not  have  been 
suffered  to  elapse  had  the  debt  remained  unpaid.  *  *  * 
To  aid  the  presumption  of  payment  from  the  lapse  of  time 
the  defendants  offered  evidence  of  what  they  called  the 
needy  circumstances  of  the  obligee  and  the  easy  and  sol- 
vent circumstances  of  the  obligor.  No  doubt  *  *  * 
evidence  to  prove  this  is  entirely, competent." 

In  case  VI.  the  court  said:  *' The  circumstance  was  of 
such  a  nature  as  tended  strongly  to  support  the  theory  tlnit 
the  note  had  been  paid.  The  conduct  of  R.  on  that  occa- 
sion was  wholly  inconsistent  with  the  idea  that  the  note 
was  unpaid.  He  was  pressed  for  money,  and  if  the 
amount  of  the  note  was  then  due  him  and  his  partner 
from  G.  it  is  hardly  possible  that  he  would  not  then  have 
demanded  its  payment." 


RULE    73,]  THE   PRESUMPTION    OF   PAYMENT.  327 

RULE  73.  —  A  statute  of  limitations  prohibits  the  action 

after  tlie  legal    period,  but  the  presuuiption  of  law 

arising  from  lapse  of    time    may  be    rebutted^  (A). 

And  the  term  fixed  by  the  statute   of  limitations  can 

not  be  shortened  by  lapse   of    time  alone  (B). 

After  twenty  years  the  presumption  of  payment  arises, 
unless  there  arc  circumstances  to  account  for  the  dchiy,  and 
if  there  are  no  such  circumstances  it  becomes  a  presump- 
tion of  law,  and  the  question  should  not  be  submitted  to 
the  jury.  "  If  there  had  been  any  circumstances,  any- 
thing but  the  lapse  of  time,  to  charge  the  jury  on,  that 
should  have  been  left  to  the  jury ;  *l3ut  where  there  was 
none  the  presumption  of  law  on  the  fact  is  that  the  judg- 
ment w^as  satisfied.  The  court  did  no  more,  and  if  they  had 
done  less  they  would  have  committed  an  error.  On  the 
twenty  years  unexplained  there  was  nothing  to  leave  to  the 
jury;  they  had  no  belief  to  exercise  on  it;  it  is  because 
there  are  no  means  of  belief  or  disbelief  the  presumption 
of  fact  arises  ;  the  presumption  holds  the  place  of  jjarticu- 
lar  and  undivided  belief.  It  prevail-s  because  the  presump- 
tion of  law  is  that  tlie  obligor  in  that  Ions;  time  has  lost  his 
receipts  and  vouchers,  or  the  witnesses  who  could  prove  the 
payment  might  be  dead.  The  jury  might  not  have  believed ; 
this  court  might  not  believe  the  fact  of  payment,  but  that 
specific  belief  is  not  necessary.  For  wise  purposes  the  law 
has  raised  this  general  presumption.  The  laying  down  any 
other  rule  would  be  destroying  all  legal  presumption.  The 
position  of  the  court  below  is  justified  by  the  opinions  of 
all  the  judges  in  England  in  GrantivicJce  v.  /Sampson,'^  that 
*'  the  judges  have  bound  it  down  as  an  irrevocable  rule  that 
if  there  be  no  demand  for  money  due  on  a  bond  for  twenty 
years  they  will  direct  a  jur}^  to  find  it  satisfied  from  the  pre- 
sumption arising  from  length  of  time.'  "  ^ 


1  Lyon  V.  Guild,  5  Ucisk.  175  (1871) ;  Thorpe  r.  Corwin,  20  N.  J.  (L.)  311  (1S44). 

2  2  Atk.  154. 

3  Cope  r.  Uumphreys,  14  S.  &  U.  21  (1S2J) ;  Webb  r.  Dean,  21  Pa.  St.  SI  (1853). 


328  PRESUMPTIVE  EVIDENCE.        [rULE  73. 

Illust7'atio7is. 


I.  A.  in  1836  gives  B.  a  bond  payable  in  1838.  In  18G0  B.  brings  suit 
on  the  bond.  The  presumption  is  that  it  is  paid.  But  it  appears  that  in 
1841  A.  stated  to  B.  that  he  did  not  intend  ever  to  pay  the  bond,  as  B. 
had  talien  so  much  from  their  father.  This  rebuts  the  presumption.  A 
statute  provides  that  no  action  shall  be  brought  on  a  specialty  debt  after 
twenty  years  unless  the  debtor  during  or  after  that  time  has  made  a  new 
promise  to  pay  the  debt.  The  action  against  A.  can  not  be  maintained, 
notwithstanding  his  aclinowledgeraent.i 

In  case  I.  it  was  said  :  "  That  presumption  ■which  the  law 
raises  after  a  lapse  of  twenty  years  that  a  bond  or  specialty 
has  been  paid  is  in  its  nature  essentially  different  from  the 
bar  interposed  by  the  statute  of  limitations  to  the  recovery 
of  a  simple  contract  debt.  The  latter  is  a  prohibition  of 
the  action,  the  former  prima  facie  obliterates  the  debt. 
The  bar  is  removed  by  nothing  less  than  a  new  promise  to 
pay,  or  an  acknowledgment  consistent  with  such  a  promise. 
The  presumption  is  rebutted,  or,  to  speak  more  accurately, 
does  not  arise  where  there  is  affirmative  proof  beyond  that 
furnished  by  the  specialty  itself,  that  the  debt  has  not  been 
paid,  or  where  there  are  circumstances  that  sufficiently 
account  for  the  delay  of  the  creditor.  The  statutory  bar  is 
not  removed  without  a  new  promise  or  its  equivalent, 
because  suit  on  the  old  contract  is  prohibited,  and  the  debtor 
can  only  be  liable  therefore  on  the  contract  expressly  made 
by  the  new  promise  or  implied  from  an  acknowledgment  of 
continued  indebtedness,  the  old  debt  being  the  considera- 
tion for  the  new  engagement.  This  is  the  logic  of  the  mat- 
ter, though  it  is  true  the  pleadings  have  not  been  moulded 
accordingly.  We  still  declare  on  the  old  debt,  and  give  the 
new  promise  in  evidence;  but,  notwithstanding  this  incon- 
gruity, the  liability  which  the  law  enforces  arises  out  of  the 
new  contract.  *  *  *  The  statute  of  limitations  is  a 
bar  whether  the  debt  is  paid  or  not.  Not  so  where  suit  is 
brought  on  a  sealed  instrument.     The  fact  of  indebtedness 

1  Eeed  v.  Reed,  46  Pa.  St.  239  (1863). 


I 


KULE    73.]  THE    TRESU^IPTION    OF    PAYMENT. 


329 


is  then  in  controversy,  and  the  legal  presumption  of  pay- 
ment from  lapse  of  time  is  nothing  more  than  a  transfer  of 
the  onus  of  proof  from  the  debtor  to  the  creditor.  Within 
twenty  years  the  law  presumes  that  the  debt  has  remained 
unpaid,  and  throws  the  burden  of  proving  payment  upon 
the  debtor.  After  twenty  years  the  creditor  is  bound  to 
show  by  something  else  besides  his  bond  tliat  the  debt  has 
not  been  paid,  because  the  presumption  raises  only  aj^riJiia 
facie  case  against  him.  It  must  be  borne  in  mind  that  the 
presumption  from  lapse  of  time  is  not  that  there  is  no  con- 
tract existing  between  the  parties.  If  it  were,  proof  of  a 
new  contract  might  be  necessary.  It  is  only  an  inference 
that  the  debtor  has  done  something  to  discharge  the  debt, 
to  wit,  that  he  has  made  payment.  Hence  it  is  rebutted  by 
simple  proof  that  payment  has  not  been  made,  and  the  facts 
being  established,  whether  they  are  sufficient  to  rebut  it  is 
a  question  for  the  court  and  not  for  the  jury.  The  pre- 
sumption is  one  drawn  by  the  law  itself  from  a  given  state 
of  facts,  and  whether  it  exists  or  not  is  -necessarily  for  the 
court." 

The  character  of  the  creditor  for  strictness  and  closeness 
in  the  collection  of  his  debts  is  relevant  on  the  presumption 
of  payment  by  lapse  of  time.'^  For  a  like  reason  in  a 
Pennsylvania  case  it  is  said:  "  While  on  the  one  hand  the 
party  seeking  to  recover  a  demand  may  introduce  any  cir- 
cumstance, however  slight,  having  a  tendency  in  the  least 
degree  to  defeat  the  presumption  (of  payment),  so  he  who 
relies  on  it  may  strengthen  and  support  it  by  any  fact  which 
legally  and  naturally  has  that  effect.  In  the  present  case 
the  heirs  of  a  man  are  seeking  indirectly  to  recover  a  claim 
due  more  than  thirty  years  before  suit  brought.  To  show 
that  this  man  in  his  life-time  and  during  the  progress  of 
these  thirty  years  was  in  needy  circumstances  and  pressed 
by  his  creditors  in  various  suits  for  large  sums  of  money 
which  ended  in  the  recovery  of  judgments  and  executions 

1  Leiper  t-.  Erwiu,  5  Yerg.  97  (1833) ;  Kilpatrick  v.  Brashaer,  10  Uci^k.  372  (1371). 


330  PRESUMPTIVE   EVIDENCE.  [rULE    73. 

against  him,  was  but  calling  in  aid  of  the  legal  presumption, 
the  strong  natural  inference  that  one  so  harassed  by  his 
creflitors  and  apparently  in  want  of  money  for  the  payment 
of  his  debts,  would  not  have  permitted  his  debtor  to  a  large 
amount  to  escape  for  so  long  a  time  a  demand  of  payment 
by  suit.  *  *  *  But  it  is  said  the  record  of  these  judg- 
ments should  not  have  been  received,  because  it  appeared 
all  of  them  had  been  satisfied.  But  though  this  circum- 
stance may  have  weakened  the  effect  their  introduction  was 
intended  to  produce,  it  certainly  did  not  altogether  destroy 
it."i 

B. 

1.  J^  mortgage  given  by  A.  to  B.  falls  due  in  July,  1819,  Proceedings 
to  foreclose  it  are  commenced  in  June,  1839,  In  a  subsequent  action  to 
recover  possession  defendant  asks  that  it  shall  be  submitted  to  the  jury 
whether  from  lapse  of  time  payment  should  not  be  presumed  to  have 
been  made  before  its  foreclosure.  A  statute  of  the  State  provides  that 
"after  the  expiration  of  twenty  years  from  the  time  the  right  of  action 
shall  accrue  upon  any  sealed  instrument  by  the  payment  of  money,  such 
right  shall  be  presumed  to  have  been  extinguished  by  payment."  No 
presumption  can  arise  from  mere  lapse  of  time  short  of  twenty  years. ^ 

"  We  take  it,"  said  the  court  in  Grafton  Bank\.  Doe^ 
*'  to  be  well  settled  that  courts  arc  never  at  liberty  to  pre- 
sume payment  from  mere  lapse  of  time  in  any  period  less 
than  that  which  is  fixed  by  the  statute  of  limitations.  To 
hold  otherwise  would  virtually  be  a  repeal  of  the  statute. 
No  doubt  lapse  of  time,  connected  with  other  circumstances, 
and  evidence  tending  to  prove  payment,  may  legitimately 
aid  in  establishing  the  fact."  But  if  besides  the  lapse  of 
time  there  are  other  circumstances  showing  that  payment 
has  been  made  the  jury  may  presume  payment.* 

Presumption  of  payment  of  a  bond  can  not  be  raised  by 
a  lapse  of  less  than  the  statutory  time  alone  ;  in  connection 
with  other  circumstances  alone  it  may.     In  Henderson  v. 


1  Levers  v.  Van  Buskirk,  4  Pa.  St.  314  (1846.) 

2  In};rahamr.  Baldwin,  9  N.  Y.  45  (1853). 
8  10  Vt.4(i7  (1847). 

*  Milledge  «;.Ciardner,33Ga.  397  (1863) ;  Mayor  of  Kingston  v.  Horner,  1  Cowp.  102. 


KULE    73.]  THE    I'KESUMrTIUX    OF    rAYMH.XT.  331 

Leicis,^  judgment  had   been  recovered    on   a  bond  which 
Ijecanic  duo  eighteen  years  and  three  months  Ijcfore  suit  was 
brought  ;  during  this  time  there  had  been  indorsed  on  it  a 
credit  of  a  year's  interest  and  a  small  part  of  the  principal. 
On  appeal  the  court  said:  "  The  rule  with  respect  to  the 
presumption  to  be  drawn  from  lapse  of  time  is  derived  by 
analogy  from  the  English  statute  of  limitations  concerning 
writs  of  entry  into  land,  and  the  statute  of  limitations  con- 
cerning writs  of  error ;  and  it  is  adopted  by  courts  of  law 
and  by  courts  of  equity;  by  the  former  not  only  in  the 
case  of  a  stale  claim  on  a  bond,  but  in  the  case  of  a  peace- 
able possession  of  a  franchise  or  incorporeal  right ;  and  by 
the  latter  in  the  case  of  a  bill  by  a  mortgager  to  redeem, 
and  in  the  case  of  a  bill  of  review.     Our  act  of  assembly 
restrains  the  commencement  of  actions  for  recovering  the 
possession  of  lands  to  twenty-one  years  from  the  time  the 
right  of  entry  first  accrued;  but  the  rule,  as  styled  in  anal- 
ogy to  the  English  statute,  the  limitation  in  which  is  only 
twenty  years,  was  here  adopted,  before  our  act  was  passed; 
and  it  was  not  afterwards  worth  while  to  alter  it  merely  for 
the  sake  of  preserving  the  analogy.     But  the  rule  is  in  the 
nature  of  a  statute  of  limitations,  furnishing  not  indeed  a 
legal  bar,  but   a  presumption  of  facts,  and  although  less 
than  conclusive,  yet  priina  facie  evidence  of  it,  and  there- 
fore sufficient  of  itself  to  cast  the  burden  of  countervailing 
evidence  on  the  opposite  party.     When  less  than  twenty 
years  has  intervened,  no  legal  presumption  arises,  and  the 
case  not  being  within  the  rule  is  determined  on  all  circum- 
stances; among  which,  the  actual  lapse  of  time,  as  it  is  of 
a  greater  or  a  less   extent,  will  have  a  greater  or  a  less 
operation.     All  this  is  so  clearly  stated  by  Lord  Mansfield, 
in  the    Winclidsea   Causes,^  as  to  leave  no   doubt  of   the 
oriiiin  and  nature    of   the   rule.     In  the  case    of    a  debt 
accruing  by  reason  of  a  specialty,  it  was  necessary  for  the 
sake  of  convenience  and  repose  to  establish  some  certain 

1  9  S.  &  R.  370  (U  Am.  Dec.  733)  (ISiO).  ■  i  BuiT.  19G2. 


332  PKESUMPTI^^:  evidence.  [rule  73. 

period  after  which  payment  should  be  presumed  from  lapse 
of  time  alone ;  and  that  period  was,  in  analogy  to  the 
statute  of  limitations,  fixed  at  twenty  years.  But  it  is  to  be 
observed,  there  is  an  obvious  distinction  between  length  of 
time  sufiicient  in  itself  to  raise  a  legal  presumption  of  the 
kind  which  I  have  mentioned,  and  length  of  time  which, 
although  insufficient  for  that  purpose  may,  nevertheless, 
in  connection  with  other  circumstances,  fairly  enter  into 
the  estimate  of  the  proof  to  be  derived  from  the  whole  evi- 
dence. The  rule  is  applicable  only  to  the  first,  because  no 
legal  presumption  of  the  fact  can  be  obtained  from  the  sec- 
ond, and  stabitiir  presumptioni,  donee  prohetur  in  contra- 
rium  can  not  be  predicated  of  it;  it  is  a  matter  exclusively 
for  the  consideration  of  the  jury.  A  want  of  attention  to 
this  has,  I  apprehend,  given  rise  to  the  loose  dicta  of  Lord 
IMansfield  and  other  judges  of  the  length  of  time  necessary 
to  found  a  presumption  of  payment,  being  about  twenty 
years,  and  of  cases  having  been  left  to  the  jury  where  it 
was  but  eighteen.  To  deprive  the  rule  of  fixed  limit  would, 
besides  rendering  its  application  in  most  cases  difficult  and 
uncertain,  change  its  very  nature,  and  destroy  all  analogy 
to  the  statutes  of  limitations  from  which  it  was  derived.  If 
eighteen  years  be  left  to  the  jury  as  sufficient  in  one  case, 
why  may  not  seventeen,  or  any  less  number,  be  left  to 
them  as  sufficient  in  another?  But  the  presumption  is  not 
subject  to  the  discretion  of  the  jury;  they  are  bound, 
where  it  operates  at  all,  to  adopt  it  as  satisfactory  proof 
till  the  contrary  be  made  out ;  and  hence,  when  we  hear  of 
less  than  twenty  years  being  left  to  the  jury,  it  must  b3 
understood  to  have  been  in  connection  with  other  circum- 
stances, and  not  as  making  out  the  defendant's  case  in  the 
first  instance,  but  as  going  for  just  as  much  as  the  jury 
might,  under  all  the  circumstances,  estimate  it  to  be  worth. 
In  the  case  before  us  there  was  not  a  lapse  of  time  sufficient 
to  authorize  a  presumption  of  payment,  and  as  there  was 
nothing  in  aid  of  the  time  which  actually  elapsed,  I  am  of 
opinion  the  cause  was  properly  put  to  the  jury." 


RULE    74,]  THE   PUESU3IPT10X   OF   PAYMENT.  333 

IIULE  74.  —  The  presumption  of  payment  may  be  re- 
butted under  Rule  73  by  showing  (at  any  time  during 
tlie  period  whicli  creates  the  presumption)  an  acknowl- 
edgment of  the  debt  by  the  d<'btor  ( A) ;  or  a  payment 
of  part  of  it  (B),  or  a  known  or  notorious  insolv- 
ency (C)  or  incapacitj' (D)  of  the  debtor;  or  by  evi- 
dence of  the  relation  (E),  situation  (F),  or  intention 
(G)  of  the  parties  ;  or  by  other  circumstances  explan- 
atory of  the  delay  (H). 

In  Hillary  v.  Waller,^  the  chancellor  saitl:  *'  Then  as  to 
a  presumption  of  title.  First  as  to  a  bond  taken,  and  no 
interest  paid  for  twenty  years  ;  nay,  within  twenty  years, 
as  Lord  Mansfield  has  said ;  but  upon  twenty  years  the  pre- 
sumption is  that  it  has  been  paid,  and  the  presumption  Mill 
bold  unless  it  can  be  repelled  ;  unless  insolvency  or  a  state 
approaching  it  can  be  shown,  or  that  the  party  was  a  near 
relation,  or  the  absence  of  the  party  having  the  right  to  the 
money,  or  something  which  repels  the  presumption  that  a 
man  is  always  ready  to  enjoy  Mhat  is  his  own." 

Illustrations. 


I.  A.  gives  B.  a  bond  for  the  payment  of  §300  in  1817.  An  action  is 
brought  on  it  in  18-45.  The  presumption  that  it  is  paid  is  rebutted  by 
proof  that  in  1837  A.,  in  the  presence  of  a  witness,  acknowledged  tliat  it 
was  still  due.' 

II.  C.  brings  suit  against  D.  on  a  bond  payable  over  twenty  years, 
before  action.  D.  during  this  time,  and  within  twenty  years,  admitted 
that  it  was  due,  but  said  he  had  a  defense  to  it.  There  is  no  presump- 
tion that  it  was  paid.' 

III.  F.  sues  G.  on  a  bond  more  than  twenty  years  after  it  was  due. 
But  during  this  time  G.  has  twice  stated  that  he  would  not  pay  it,  as  F. 


1  12  Ves.  2fi7  (ISOC). 

2  Eby  V.  Eby,  5  Pa.  St.  4.To  (1S46) ;  Bissell  r.  J.iiidon,  16  Ohio  St.  49S  (1S6G).  And  a 
demand  proved  to  Ii.tvc  Lieen  niiide  on  the  debtor  by  the  creditor  rebuts  tlie  presump- 
tion. Shields  V.  rringle,  2  Eibb,  387  (ISll) ;  Waumakcr  v.  Vau  Buskirk,  1  Saxt.  Ch. 
(N.J.)  CSo. 

3  Stout  V.  Levan,  3  Pa.  St.  236  (1S46). 


334  rEESUMPTms  evidence.  [rule  74. 

hn.d  obtained  more  tliau  be  from  their  fatlier.     Tliis  rebuts  tlie  presump- 
tion of  payment. 1 

IV.  C.  gives  a  mortgage  on  his  laud  to  II.  in  1854.  In  1874  H.  dies, 
leaving  the  mortgage  to  his  daughter  M.  lu  1879  M.  asks  C.  for  an 
acknowledgment  that  the  mortgage,  on  which  nothing  had  ever  been  paid, 
was  a  valid  security,  to  which  C.  agrees,  making  a  memorandum  to  this 
effect  on  the  mortgage.  M.  subsequently  assigns  the  mortgage  to  E.,  who 
sends  it  to  C.  to  get  an  admission  of  tlie  genuineness  of  his  signature. 
C.  keeps  the  mortgage,  and  afterward  states  that  it  is  lost.  These  facts 
rebut  the  presumption  of  payment.^ 

Ill  case  I.  it  was  said :  "  The  legal  presumption  of  pay- 
ment which  the  law  allows  at  the  expiration  of  twenty  years 
after  the  debt  becomes  due  is  an  act  of  tenderness  toward 
the  debtor  which  is  sustained  by  the  absence  of  evidence, 
and  like  other  presumptions,  must  yield  and  give  way  before 
any  circumstances  and  facts  on  which  the  mind  can  rest 
with  satisfaction  by  which  it  is  rebutted  or  repelled.  It  has 
not  the  power  or  effect  of  a  positive  statutory  enactment  of 
limitation  or  oblivion  which  extinfjuishes  the  original  de- 
mand,  and  requires  a  new  promise  to  pay  or  its  equivalent. 
The  mind  must  be  free  to  admit  the  presumption,  and  if  the 
exhibition  of  facts  or  circumstances  interdict  and  forbid 
the  conclusions,  the  protection  is  removed.  *  *  *  There 
could  be  no  doubt,  whatever,  that  an  acknowledgment  of 
the  debt  before  the  efflux  of  twenty  years  excluded  the 
legal  presumption  of  payment.  The  question  raised  and 
argued  was  as  to  the  competency  of  an  acknowledgment 
after  the  expiration  of  twenty  years  from  the  time  the  bond 
became  due.  The  court  did  not  err  in  their  instruction  to 
the  jury.  The  burden  of  proof  lies  on  the  plaintiff;  and 
if  he  satisfies  the  jury  by  proper  evidence  that  the  defend. 
ant,  after  the  exj5iration  of  twenty  years,  admitted  the  exist- 
ence of  the  debt,  it  would  be  converting  legal  presumption 
into  credulity  to  instruct  a  jury  that  thoy  were  authorized 
to  presume  payment  against  positive  evidence.     The  legal 

'  Reed  v.  Reed,  46  Pa.  St.  239  (1863). 

*  ilurphy  V.  Coates,  33  N.  J.  (Eq.)  424  (1881). 


KULE    74.]  THE   niESUJrPTIOX   OF   TAYMEXT. 


335 


presumption  of  payment  would  be  changed  into  a  legal  and 
peremptory  bar,  contrary  to  all  authority." 

In  case  II.  it  was  said:  «' The  suit  was  not  brought 
within  twenty  j'cars  from  the  date  of  the  bond  and  the  debt 
parable.  Twenty  years'  delay  unaccounted  for  pays  the 
debt.  *  *  *  This  payment  is  by  operation  of  law. 
After  that  time,  if  not  accounted  for,  the  debt  is  presumed 
to  be  paid.  This  presumption  as  a  bar  is  conclusive  of  its 
payment  unless  it  is  rebutted  by  countervailing  proof. 
This  presumption  may  be  overcome  by  proofs  of  various 
kinds  of  facts  and  circumstances.  Payment  of  money 
in  part  discharge  of  the  present  existing  debt;  an  acknowl- 
edgment that  the  debt  is  still  unpaid  and  due  will  rebut 
this  presumption  of  payment.  It  is  not  reasonable  to  pre- 
sume a  debt  paid  which  the  debtor  says  was  not  paid." 

"  It  would  be  absurd,"  said  the  coui-t  in  case  III.,  *'  for 
the  law  to  presume  in  the  case  of  such  admission  that  it  had 
been  paid.  All  presumptions  are  in  accordance  with  what 
is  usual,  not  against  it.  True,  the  defendant  added  to  his 
admissions  the  expression  of  a  purpose  not  to  pay,  giving 
as  a  reason  not  that  he  had  paid,  but  that  the  plaintiff  had 
obtained  more  than  he  had  under  the  will  of  their  common 
father.  This  might  be  important  if  it  was  necessary  to 
show  that  a  new  obligation  had  been  assumed,  but  it  only 
strengthens,  if  possible,  the  evidence  that  the  debt  remained 
unjiaid." 

*'  But  the  presumption  of  payment,"  it  was  said  in 
case  IV.,  "which  arises  in  regard  to  mortgages  from 
lapse  of  time,  without  payment  of  interest  or  demand 
made,  is  only  a  presumption,  and  it  is  one  which  in;iy  be 
rebutted.  In  this  case  C.  has  acknowledged  both  verball}' 
and  in  writing  that  neither  principal  nor  interest  has  been 
paid." 

But  the  fact  that  the  debtor  had  during  the  twenty  years 
said  to  a  stranger  that  he  would  not  p:iy  the  debt  (a  legacy) 
because  the  creditor  was  rich  enough  without  it  was  held 
insufficient.     ""When  a  person,"  said  the  court,  "  in  con- 


336  PRESUMPTIVE  EVIDENCE.        [rULE  74. 

versation  with  a  stranger  respecting  the  chiira  of  another, 
says  he  will  not  pay  it,  there  is  not  the  same  reason  for 
inferring  recognition  that  exists  when  the  creditor  requests 
and  its  debtor  refuses  paj^ment.  In  the  latter  case  not  to 
deny  is  to  admit.  Besides  the  debt  is  claimed.  But  it  does 
not  concern  the  stranger  whether  the  claim  is  existing  or 
has  been  paid.     He  has  no  right  to  ask  payment."  ^ 

B. 

I.  T.,  II.  and  S.  sign  a  bond  payable  in  1880.  Thie  presumption  in  1881 
is  that  it  is  paid.  But  it  appears  that  in  1868  T.  became  bankrupt,  and 
his  assignee  paid  T.'s  share  of  the  obligation.  This  rebuts  the  presump- 
tion which  had  arisen  in  favor  of  H.  and  S.^ 

C. 

I.  A  judgment  is  entered  against  L.  in  the  j'ear  1818  for  over  one 
thousand  dollars.  The  presumption  in  1846  is  that  it  is  paid.  It  is 
shown  that  many  judgments  and  executions  were  issued  against  him  after 
that,  and  that  from  1820  to  the  present  time  he  was  insolvent  and  unable 
to  pay  his  debts.    This  rebuts  the  presumption  of  payment. ^ 

II.  "While  A.  and  B.  lived  in  "Virginia,  A.  gives  B.  a  bond  payable  in 
1811.  In  1812  A.  removes  to  North  Carolina  and  then  to  Mississippi,  where 
he  lives  till  he  dies  in  1819.  He  is  during  this  time  in  most  destitute  cir- 
cumstances except  for  about  eighteen  months  at  one  time,  when  he  is 
in  possession  and  appears  to  be  the  owner  of  considerable  property.  In 
an  action  brought  on  the  bond  in  1837  the  presumption  of  paj-ment  is 
rebutted  by  his  insolvency.  And  the  fact  of  insolvency  is  not  affected  by 
the  interval  of  solvency  of  which  the  creditor  could  not  have  known.* 

III.  The  presumption  of  the  paj^ment  of  a  bond  being  rebutted  by 
proof  of  the  insolvency  of  the  obligor  during  all  the  time,  It  appears  that 
he  had  a  reversionary  interest  in  certain  shares  which  did  not  vest  in  him 
until  a  short  time  before  action  brought,  and  of  which  the  creditor  was 
ignorant.    This  does  not  affect  the  rebuttal. ^ 


1  Bentley's  Appeal,  99  Pa.  St.  500  (18S2). 

-  Belo  V.  Spach,  85  N.  C.  192  (1881) ;  IJamlin  v.  namlin,  3  Jones  (Eq.)  191.  So  as 
to  the  payment  of  interest.  Shields  v.  Pringle,  2  Bibb,  387  (1811).  But  the  evidence 
of  a  joint  obligor  of  a  bond  that  he  had  not  paid  it  is  not  admissible  to  repel  the 
presumption  arising  from  lapse  of  time.    Rowland  v.  Windley,  86  N.  C.  36    1882). 

8  Farmers'  Bank  v.  Leonard,  4  IlaiT.  (Del.)  537  (1848) ;  McClellan  v.  Crofton,  6 
Me.  334  (1830) ;  Fladong  v.  Winter,  19  Ves.  197  (1812) ;  Wynne  v.  Waring,  1  Term  Rep. 
270;  Kilpatrick  v.  Brashaer,  lOHcisk.  372  (1873) ;  Ilopkirk  v.  Page,  2  Brock.  20  (1822). 

*  McKinder  v.  Littlejohn,  4  Ired.  (L.)  198  (1843). 

'  ilcKinder  v.  Littlejohn,  1  Ired.  (L.)  66  (1810). 


RULE    71.]  THE   PRESUMPTION    OF   PAYMENT. 


337 


IV.  The  issuance  and  return  of  an  execution  nuUa  bona  is  a  circum- 
stance rcl)Utting  the  presuiupliou  of  the  payment  of  a  judfjiuent  from 
lapse  of  time.' 

In  case  I.  it  was  said:   '♦  It  is  a  well  established  rule  of 
law  that   where   a   debt   due   by   specialty   has  not   been 
demanded  by  the  plaintiff  or  acknowledged  or  recognized 
by  the  defendant  for  twenty  years,  and  nothing  is  shown  to 
account  for  the  delay,  the  debt  shall  be  presumed  to  have 
been  fully  paid  and  satisfied.     This  rule  applies  not  only  to 
bonds,  but  to  mortgages,  judgments,  recognizances,  decrees, 
and   other  debts  of   record.     If  the  presumption   is    not 
repelled  by  sufficient  legal  evidence,  it  becomes  absolute 
and  conclusive,  and  the  jury  are  bound  to  render  a  verdict 
for  the  defendant,  although  they  may  individually  believe 
that  the  debt  has  not  been  paid.     The  rule  is  founded  on 
the  common  experience  of  the  conduct  of  men  in  relation 
to  the  transaction  of  business ;  and  was  intended  for  the 
security  and  repose  of  society,  by  discountenancing  suits 
for  stale  demands  and  discouraging  the  laches  and  negli- 
gence of  parties  in  dela}  ing  to  prosecute  their  claims  for  an 
unreasonable  length  of  time  when  they  had  the  means  and 
opportunity  of  enforcing  them.     The  rule  also  was  intended 
for  the  protection  of  the  debtor  whose  receipts  or  vouchers 
may  perhaps  be  lost,  or  witnesses  be  dead  or  removed;  or 
the  true  state  of  the  transactions  be  otherwise  obscured  by 
lapse  of   time.     It  is  better  for  the  peace  and  repose  of 
society  and  the  ends  of  justice  that  the  presumption  arising 
from  lapse  of  time  should  be  adhered  to,  and  not  be  easily 
rebutted  ;  although  in  many  cases  it  may  be  contrary  to  the 
actual  truth  of  the  case.     Although  this  rule  is  well  estab- 
lished, it  is  equally  well  settled  that  in  all  cases  the  pre- 
sumption of  payment  arising  from  lapse  of  time  may  be 
repelled    by    countervailing   evidence   which   satisfies   the 
minds  of  a  jury  that  the  debt  is  still  due  and  unpaid.     The 
evidence  for  this  purpose  must  consist  (1)  of  an  uncondi- 

1  Black  r.  Carpenter,  3  Baxt.  350  (1374). 


338  PRESmiPTIVE   EVIDEIJCE.  [RULE    74. 

tional  and  unqualified  acknowledgment  or  admission,  cither 
express  or  implied,  on  the  part  of  the  defendant  witliin 
twenty  years  of  the  justness  of  the  claim,  and  that  it  is 
still  due  ;  or  (2)  a  payment  on  account  of  either  the  prin- 
cipal or  interest,  either  of  which  is  an  implied  recognition 
of   the  debt;  or  (3)  the   situation,  condition,  or  circum- 
stances of  the  parties,  such  as  the  absence  of  the  plaintiff 
or  the  defendant  in  a  foreign  country,  or  the  insolvency  or 
embarrassment  of  the  plaintiff  or  the  defendant.     There  is 
no  evidence  either  of  the  first  or  second  description.     But 
the  plaintiffs  contend  that  there  is  sufficient  and  competent 
evidence  of  the  third  descri[)tion  to  rebut  the  presumption 
of  payment  in  the  present  case.     The  question  is  presented 
whether  the  poverty  or  insolvency  of  the  defendant  or  a 
state  approaching  or  manifestly  tending  to  insolvency  is 
admissible  in  evidence.     The  court  are  of  opinion  that  it 
is.     The  indigent  circumstances  of   a  creditor  who  holds 
a  bond  and  had  the  opportunity  to  collect  it  from  the  debtor 
but  makes  no  demand  of  payment,  either  of  the  principal 
or  interest,  for  a  period  of  twenty  years,  afford  strong  pre- 
sumptive evidence  of  payment  or  satisfaction.     So  on  the 
other  hand  and  for  the  same  reason  the  indigent  circum- 
stances of  a  debtor,  his  hopeless  insolvency  and  inability  to 
pay  his  debts,  are  properly  admissible  in  evidence  for  the 
l^urpose  of  repelling  presumption  of  payment  or  satisfac- 
tion arising  from  lapse  of  time.     Therefore,  if  the  jury  are 
satisfied  that  the  defendant  was  in  such  a  state  of  indigence 
or  insolvency  since  the  year  1820,  that  he  was  unable  to 
pay  this  judgment  and  other  debts  which  had  priority  or 
preference,  the  presumption  of  payment  is  repelled  and  the 
verdict  ought  to  be  for  the  plaintiffs.     Bat  if  the  jury  are 
satisfied  from  the  evidence  in  this  case  that  the  defendant, 
although  in  indijrent  or  embarrassed  circumstances  since  the 
year  1820,  had,  during  that  period,  either  from  visible  prop- 
erty or  from  other  resources  from  which  payment  might 
hnvG    been   coerced  by   the  use   of    legal   process    either 
against  his  property  or  his  person,  the  means  of  paying 


RULE    7-i.]  THE   PRESUMPTION'   OF   PAY.MEXT.  339 

this  judgment  and  other  judgments  having  a  priority  of 
lien  upon  any  land  or  real  property  which  he  may  have  had, 
and  also  all  other  debts,  which  by  the  use  of  legal  diligence 
could  have  been  made  to  have  a  priority  over  this  claim  ;  or 
in  other  words,  if  it  appears  to  the  satisfaction  of  the  jury 
that  this  judgment  might  have  been  collected  by  the  use  of 
legal  process  at  any  time  since  the  year  1820,  the  presump- 
tive bar  from  lapse  of  time  is  not  removed,  and  in  such 
case  the  verdict  ought  to  be  for  the  defendant."  The  jury 
found  for  the  plaintiff. 

In  case  II.  it  was  said:  "  The  distinction  is  material  as 
preventing  the  possession  of  propert}^  by  the  debtor  for  but 
a  short  period  from  counteracting  the  effect  of  insolvency, 
as  a  circumstance  repelling  the  presumption  of  payment. 
For  if  the  debtor,  living  more  than  a  thousand  miles  from 
the  creditor,  and  in  a  situation  between  which  and  the  place 
of  the  creditor's  residence  there  was  but  little  communica- 
tion, should  have  had  in  possession  property  of  value  to 
pay  the  debt  but  for  a  very  short  time,  so  that  the  jury 
should  think  the  creditor  did  not  know  of  it  and  could  not 
get  payment  out  of  that  property,  it  might  be  regarded 
as  being  substantially  a  continued  insolvency;  especially 
where,  as  here,  the  debtor  seems  barely  to  have  had  posses- 
sion of  property  without  its  appearing  how  he  got  it  and 
whether  he  had  paid  for  it." 

In  case  III.  it  was  said  :  "  The  presumption  raised  by  a 
forbearance  for  twenty  years  may  be  repelled  by  evidence 
that  the  debtor  had  not  the  means  or  opportunity  of  pay- 
ing. *  *  *  I'Ijc  circumstance  relied  on  is  not  sufficient 
to  withdraw  the  present  case  from  the  operation  of  this 
doctrine.  *  *  *  If  it  could  be  brought  home  to  the 
creditor  that  he  knew  of  this  interest  in  remainder,  an 
inference  of  negligence  in  forbearing  for  so  many  years 
from  any  effort  to  subject  it  to  his  demand  might  be 
raised  against  him,  but  as  the  intestate  himself  forebore 
wholly,  notwithstanding  his  necessities,  from  making  any 


o40  PEESCMPTIVE   EVIDENCE.  [RULE    74. 

use  of  this  interest,  it  might  be  that  he  was  ignorant 
thereof,  and  still  more  probable  that  these  creditors  knew 
not  of  it." 

In  another  case  it  was  said:  "  The  only  true  rule,  in  such 
a  case,  is  to  require  such  a  state  of  insolvency  to  be  shown 
to  have  existed  during  the  entire  ten  years  after  the  maturity 
of  the  debt  as  will  prove  that  the  del)tor  did  not  pay 
because  he  coidd  not,  and  nothing  short  of  this  will  the 
law  permit  to  destroy  its  own  inference  arising  from  the 
lapse  of  time.  Besides  this,  in  a  case  like  the  present  the 
presumption  of  payment,  unlike  that  which  is  raised  of 
the  death  of  a  party  from  his  being  continually  absent 
and  unheard  of  for  seven  years,  is  by  law  referred  to  a 
particular  period  of  time  and  has  relation  to  the  day 
on  which  the  debt  became  due."  ^ 

D. 

I.  M.  sues  0.  on  a  sealed  note  due  in  ISiO.  The  suit  is  brought  in  1861. 
The  presumption  is  that  the  note  is  paid.  It  is  proved  that  between  1840 
and  I8G0,  O.  was  insane.     This  rebuts  the  presumption. - 

E. 

I.  A.  mortgages  his  land  to  B.  A.  is  a  son-in-law  of  B.  There  is  no 
presumption,  even  after  twenty  years  with  no  payment  or  demand  of 
interest,  that  this  mortgage  has  been  paid.* 

II.  B.  mortgages  his  land  to  C.  After  a  lapse  of  time  in  which  the  pre- 
sumption of  payment  would  arise  the  rule  is  different  where  it  appears 
that  B.  had  died  many  years  before,  leaving  a  wife  and  children  in  poor 
circumstances.  * 

III.  A  father  left  his  son  A.  certain  land  having  a  doubtful  title, with  the 
provision  that  should  it  be  recovered  from  him  at  law,  B.  another  son, 
should  pay  him  a  certain  sum  from  the  estate.  The  land  is  taken  from  A. 
by  legal  process  in  1742.  In  1788,  A.  sues  B.'s  executor  for  the  sum. 
The  presumption  is  that  B.  has  paid  A.  It  appears,  however,  that,  B. 
"had  amused  A.  until  his  death  in  178."j,  with  promises  of  providing  for 


1  Grant  v.  Burgwvn,  84  N.  C.  550  (18S1);  Powell  v.  Brinkley,  Busb.  (N.  0.)  154 
(lb52) 

2  McLellan  v.  Crofton,  6  Me.  S.W  (1S;50). 

3  Wanmaker  v.  Van  Buskirk,  1  Saxt.  Ch.  (N.  J.)  685  (1832). 
*  Id. 


RULE  74.]    THE  PRESUMPTIOX  OF  TAYMENT.  341 

him  by  his  will,"  which  he  never  did.     The  presumption  of  payment  is 
rebutted.' 

In  cases  I.  and  II.  it  was  said  :  *'  Tlic  very  situation  of 
the  parties  is  of  itself  sufficient  to  rebut  the  presumption. 
The  morterajjor  was  a  near  rehitive  ;  ho  had  married  the 
dauo-htcr  of  the  mortfjafjee  and  had  issue.  The  mortn^afiror 
died  many  years  ago,  leaving  his  wife  and  children  in  pos- 
session. They  were  not  in  a  situation  to  pay  either  princi- 
pal or  interest.  To  have  exacted  the  payment  might  have 
brought  distress  upon  those  who  depended  upon  this  prop- 
erty for  support,  and  would  have  been  harsh  to  say  the 
least  of  it.  To  suffer  the  mortgage  to  remain  without 
compelling  payment  was  a  reasonable  indulgence,  and  ought 
not  to  be  set  up  now  for  the  purpose  of  defeating  the  claim. 
One  ground  for  a  presumption  of  payment  growing  out  of 
a  lapse  of  time,  is  that  a  man  is  always  ready  to  enjoy 
what  is  his  own.  Whatever  will  repel  this,  will  take  away 
the  presumption  of  payment,  and  for  this  purpose  it  has 
been  held  sufficient  that  the  party  was  insolvent  or  a  near 
relation." 

In  case  III.  Marshall,  who  was  then  at  the  bar,  argued 
as  follows  :  *' I  admit  that  length  of  time  which  induces 
a  presumption  that  a  claim  has  been  satisfied  will  create  an 
equitable  bar.  But  this  presumption  may  be  repelled  by 
testimony  accounting  for  the  delay,  and  in  this  case  there 
is  a  sufficient  reason  assigned  and  proved  for  the  appellant's 
not  asserting  his  right  at  an  earlier  day.  It  appears  that 
the  testator  of  the  appellee  had  been  long  married  without 
having  children;  that  he  acknowledged  his  brother's  lenity 
in  not  coercing  satisfaction  of  his  claim,  and  promised  to 
make  him  an  ample  provision  at  his  death."  The  court 
agreed  with  this  view  of  the  case  saying:  "The  judge 
who  pronounced  the  decree  of  reversal  in  this  case  seems 
to  have  considered  no  other  question,  but  the  presumption 
against  the  demand  on  account  of  its  antiquity.     It  is  un- 

1  Eastice  r.  Gaskins,  1  Wash.  (Va.)  1S8  (1793). 


3 J: 2  PRESUMPTIVE   EVIDENCE.  [rULE    74. 

doubtedly  true  in  general  thiit  a  right  for  a  length  of 
time  unaffected,  is  subject  to  a  presumption  of  its  having 
been  satisfied  sufficiently  strong  to  defeat  it.  But  it  is 
equally  true  that  this  presumption  may  be  opposed  by  cir- 
cumstances accounting  for  the  forbearance.  In  this  case 
we  think  a  sufficient  reason  for  the  delay  is  assigned  and 
satisfactorily  proved." 


I.  A  bond,  made  bj'  B.  to  A.  in  1784,  is  sued  on  in  1815.  The  action  is 
brought  in  England  where  A.  has  always  lived.  But  from  1792  to  1815  B. 
has  resided  in  America.    The  presumption  of  payment  is  rebutted.^ 

II.  Kent  of  a  house  becomes  due  on  December  25,  1794;  but  is  not 
sued  for  till  1816=  One  of  the  parties  resides  in  England,  the  other  in 
America.  The  breaking  out  of  the  war  between  tne  countries  and  the 
distance  between  the  parties,  prevents  the  presumption  of  payment  from 
arising.^ 

III.  During  the  period  the  time  is  running  the  parties  live  in  the  South ; 
the  war  is  flagrant  and  the  courts  are  closed.  This  rebuts  the  presump- 
tion.* 

"  The  principle  upon  which  the  presumption  of  payment 
arises  from  the  lapse  of  time  is  a  reasonable  principle  and 
may  be  rebutted  by  any  facts  which  destroy  the  reason  of 
the  rule.  That  no  presumption  could  arise  during  a  state 
of  war,  in  which  the  plaintiif  was  an  alien  enemy,  is  too 
clear  to  admit  of  doubt."  * 

G. 

I.  A  bond  payable  on  demand  is  executed  in  1843.  A  suit  is  brought 
on  it  in  18C7.  The  presumption  is  that  it  has  been  paid.  It  appears 
that  tliough  payable  on  demand  it  was  not  the  intention  of  either  party 
that  it  should  be  paid  till  a  future  time.    The  presumption  is  rebutted. » 


1  Newman  v.  Newman,  1  Stark.  101  (1815) ;  Helm  v.  Jones,  3  Dana,  88  (1835). 

2  Bailey  v.  Jackson,  16  Johns  210;  8  Am.  Dec.  309  (1819);  Shields  v.  Pringle,  2 
Bibb,3S7  (1811). 

■>  llopkirk  V.  Page,  2 Brock.  20  (1822) ;  Gwyn  v.  Porter, 5  Heisk.  254  (1871);  Jack- 
son V.  Pierce,  10  Johns.  415  (1813) ;  Montgomery  v.  Brucre,  4  N.  J.  (L.)  2C0  (ISIS) ; 
Ilalc  f .  Pack,  10  W.  Va.  145  (1877) ;  Thomas  v.  liunnicutt,  54  Ga.  337  (1876) ;  Kilpatrick 
V.  Brashacr,  10  Ileisk.  372  (1873) ;  Cannon  v.  Malhis,  Id.  575  (1873). 

■•  Marshall,  C,  J.,  in  Dunlop  v.  Ball,  2  Cranch,  184  (1804). 

6  Hale  V.  Pack,  10  W,  Va.  145  (1877). 


RULE  7-1.]    THE  rRESUMPTIOX  OF  TAYMEXT.  3^3 

II.  A  surety  to  a  note  under  seal  agaicst  which  by  lapse  of  time  a  pre- 
sumption of  pa3'ment  has  arisen  is  aslied  during  this  time  to  sell  his  land 
to  auother.  He  replies  that  he  can  not,  as  the  creditor  if  he  does,  will 
push  him  on  the  note,  which  he  has  promised  not  to  do  during  his  life 
time.    This  rebuts  the  presumption  of  payment,' 

In  case  I.  it  was  said  :  *'  Do  sufficient  circumstances  exist 
in  this  case  to  rebut  the  presumption  of  payiuent  ?  I  think 
so.  The  bond,  it  is  true,  was  payable  on  demand,  but  the 
accompanying  circumstances  show  conclusively  that  neither 
the  obligors  nor  the  obligee  expected  this  bond  to  be  paid 
promptly.  It  is  true  a  legal  cause  of  action  arose  the 
day  the  bond  was  executed;  but  it  would  have  been  a 
gross  breach  of  good  faith  if  the  obligor  had  sued  on  it 
promptly.  *  *  *  ^\;]^q  bond  in  this  case  was  given  by 
the  members  of  a  mercantile  firm  to  a  brother  of  one  of  the 
obligors.  It  was  given  for  money  advanced  to  them  to  be 
used  in  their  business.  And  tlio  obliijee  borrowed  it  for  the 
express  i)urpose  of  letting  them  have  the  use  of  it  in  their 
business.  Their  credit  was  not  sufficient  to  enable  them  to 
borrow  this  money,  and  the  obligee  borrowed  it  on  his  own, 
simply  for  their  accommodation.  The  whole  object  of  this 
arrangement  would  have  been  defeated  by  the  obligee 
demanding  the  payment  of  the  bond  promptly.  Presump- 
tion of  payment,  under  such  circumstances,  would  be  as  un- 
reasonable as  the  presumption  tiuit  a  bond  was  paid  before 
it  was  due.  Abating,  therefore,  such  reasonable  time  after 
the  bond  was  given  before,  accordino;  to  the  understaudinj; 
of  the  parties,  it  was  to  be  paid  *  *  *  and  the  time 
during  which  presumption  of  payment  could  arise  in  this 
case,  would  be  much  less  than  twenty  years." 

H. 

I.  A  deed  of  trust  to  secure  a  debt  is  made  and  recorded  in  June,  1841. 
There  are  frequent  sales  of  the  land,  some  by  the  grantor  and  those 
claiming  under  him,  and  the  purchasers  have  no  actual  notice  of  the 

1  Fisher  v.  riiillips,  4  Eaxt.  243  (1S7-4). 


344  TRESUMrTIVE    EVIDENCE.  [rULE    75. 

deed  of  trust  until  1S7C.     These  facts  rebut  the  presumption  of  payment 
by  lapse  of  time.^ 

RULE  75.  —  A  presumption  of  payment  other  tlian  by 
lapse  of  time  will  arise  from  the  production  of  a 
receipt  from  the  creditor  ( A)  ;  from  the  possession  by 
the  debtor  of  the  security  or  obligation  (B),  or  from 
its  cancellation  (C)  ;  from  the  paj-mentof  a  later  debt 
(D)  ;  from  the  passing  of  money  between  debtor  and 
creditor  after  the  debt  is  due  (E)  ;  from  the  custom  of 
trade  (F)  ;  or  from  other  circumstances  raising-  an  in- 
ference of  pajTnent '^  (G). 

Illustrations. 
A. 

I.  A.  claims  a  horse  in  B.'s  possession.  B.  produces  a  receipt  signed 
by  A.  for  a  sura  of  money  for  a  horse.  The  presumption  is  that  A.  had 
sold  the  horse  to  B.  and  had  received  the  purchase-money. ^ 

II.  B.  sues  C.  on  a  note  pa5'able  in  1835.  C.  produces  a  receipt  given 
by  B.  to  C.  subsequent  to  the  maturity  of  the  note,  and  expressed  to  be 
"in full  of  all  demands."  The  presumption  is  that  the  note  has  been 
paid.* 

III.  A.  gives  an  order  on  R.,  stating  that  S.  wishes  to  buy  goods  of  R., 
and  tliat  A.  will  be  responsible  for  S.  S.  indorses  on  the  order  a  receipt 
for  goods  "to  the  amount  of  $100."  The  presumption  is  that  S.  had 
received  the  goods  from  R.  to  that  amount.* 

IV.  A.  sues  B.  on  an  account,  who  pleads  payment,  and  produces  a 
check  for  the  amount  drawn  on  his  bank  and  indorsed  by  A.    This  is  pre- 


1  Bowie  r.  Poor  School  Soc,  75  Va.  300  (1S81).  For  other  cases  in  which  the 
circumstances  of  the  case  were  held  to  rebut  the  presumption  of  payment  from 
lapse  of  time,  see  Ross  v.  Ellsworth,  49  Me.  41G  (18C0) ;  Ilendrick  v.  Bannister,  12  La. 
Ann.  373  (1857) ;  Wernet  v.  Mississciuoi  Lime  Co.,  4G  Vt.  458  (1S71) ;  Tomlin  v.  Howe,  1 
Gilmer  (Va.),8  (1820). 

-  For  illustration  cf  cases  where  payment  has  been  presumed  from  circnm- 
6tance8,  see  Patton  v.  Ast,  7  S.  &  R.  116  (1S21) ;  First  Nat.  Bk.  v.  JIcManiglc,  69  Pa  St. 
IX  (1871)  ;  Shinkle  v.  First  Nat.  Bk.,  22  Ohio  St.  517  (1872) ;  Pope  v.  Dodson,  58  111. 
360  (1S7J);  Fuller  v.  Smith,  5  Jones  (Eq.),  192  (1859) ;  Rockwell  v.  Taylor,  41  Conn. 
55  (1874) ;  Wood  v.  Hardy,  11  La.  Ann.  760  (1856) ;  Vimont  v.  Welch,  2  A.  K.  Marsh.  12 
(1819) ;  Carson  v.  Lineberger,  70  N.  C.  173  (1874) ;  Robinson  v.  Allison,  36  Ala.  525 
(1860). 

3  Chart  V.  Letson,  17  N.  J.  L.  78  (IS.'JO). 

4  Marston  v.  Wilcox,  2  111.  270  (1836). 

6  Rawson  v.  Adams,  17  Johns.  130  (1819) ;  Child  v.  Moore,  6  N.  H.  33  (1832). 


RULE    75.]  THE   TRESU^irTIOX   OF   TAYMnXT. 


345 


sumptive  evidence  of  payment,  though  without  tlie  iudorscmcut  by  A.  it 
would  not  bc.^ 

V.  A.  sues  B.  on  a  note  made  by  the  latter.  On  the  note  were  written 
these  words:  "  Cr.  by  casli  rec'd,  §20,"  through  which  a  pen  mark  had 
been  drawn.  The  presumption  is  that  the  sum  of  Si'O  had  been  paid  on 
the  note.^ 

VI.  The  question  is  whether  A.  has  paid  B.  a  debt  due  him.  An  account 
in  B.'s  hand  and  receipted  by  B.  is  produced  for  the  amount.  The  pre- 
sumption is  that  A.  has  paid  B.^ 

VII.  K.  purchases  goods  from  W.  and  is  sued  by  W.  for  their  price. 
K.  produces  receipts  for  the  purchase-money  signed  by  W.  The  pre- 
sumption is  that  W.  has  been  paid.* 

VIII.  A  credit  is  entered  on  the  back  of  a  bond.  It  bears  some  evi- 
dence of  an  attempt  to  erase  it,  but  is  legible.  The  presumption  is  that 
the  payment  has  been  made.* 

"  The  credit  which  was  indorsed  upon  the  note,"  it  was 
said  in  case  V.  "  is  undoubtedly  equivalent  to  an  admission 
by  hiin  that  so  much  as  was  credited  has  been  paid,  and 
there  is  no  principle  of  evidence  which  will  allow  a  person 
after  he  has  admitted  a  fact,  even  if  the  admission  is  by 
parol,  and  not  in  writing,  to  do  away  the  force  of  the  admis- 
sion by  an  after  denial  or  withdrawal  of  it.  Though  it  be 
afterward  denied,  if  it  were  by  parol  only,  or  if  it  be  in 
writing,  though  it  be  afterward  erased  or  obliterated,  the 
admission  is  nevertheless  evidence  against  the  person  mak- 
ing it,  and  is  entitled  to  all  the  weight  of  evidence  of  that 
sort,  until  explained  away  or  disproved  by  him." 

In  case  VII.  it  was  said:  *'  K.  buys  a  lot  of  merchandise 
from  AV.,  and  makes  him  two  payments  at  such  dates  and 
intervals  of  time  as  would  likely  accrue  in  the  management 
of  such  matters.  The  creditor  party,  diligent  in  claiming 
and  collectinjr  his  dues   calls  for  his  monev  ;  the  debtor 


1  Egg  f.  Barnett,  3  Esp.  Chs.  196  (1810). 
s  Graves  r.  Moore,  7  T.  B.  Mon.  341  (182S). 
8  Harrison  v.  Harrison,  9  Ala.  73  (1S46). 

*  Woolen  f.  Xall,  IS  Ga.  000  (1^5) ;  and  sec  Scmggs  v.  Bibb,  33  Ala.  481  (lSo9'  as 
to  a  receipt  "  in  full  of  all  claims." 

'  Clark  V.  Simmous,  i  Tort.  (Ala.)  14  (ISOC). 


346  rKESUMPTIVE    EYIDE>'CE.  [kULE    75. 

party,  equally  vigilant  in  guardinghis  rights  exacts  a  receipt 
which  is  executed  and  delivered ;  and  now  when  offered  in 
proof  it  is  rejected  because,  forsooth,  it  it  may  be  false  and 
fraudulent  and  filled  up  to  meet  the  case.  And  so  it  may, 
and  so  the  sun  which  has  risen  in  the  east  for  six  thousand 
years  may  not  do  so  to-morrow.  Experience,  however, 
would  warrant  a  different  conclusion  ;  and  so  the  experience 
of  human  conduct  as  to  transactions  similar  to  this  would 
justify  a  different  presumption.  Where  an  order  for  the 
payment  of  money  or  the  delivery  of  goods  is  found  in  the 
hands  of  the  drawee  or  a  promissory  note  is  in  the  posses- 
sion of  the  maker,  a  legal  presumption  is  raised  that  he  has 
paid  the  money  due  upon  it  or  delivered  the  goods  ordered. 
So  a  bank-note  will  be  presumed  to  have  been  signed  before 
it  was  issued,  though  the  sig-nature  be  torn  off;  such  beinor 
the  orderly  course  of  such  business.  The  same  presump- 
tion and  for  the  same  reason  arises  in  favor  of  the  genuine- 
ness of  these  instruments,  subject  to  be  rebutted  to  be  sure, 
as  are  all  other  presumptions." 

In  Louisiana  a  presumption  of  payment  does  not  arise 
from  the  failure  of  the  claimant  to  include  the  debt  in  the 
schedule  filed  by  him  on  a  cession  of  his  goods  when  he 
was  iiruorant  of  his  rio-hts  at  the  time  the  schedule  was 
made.^ 

B. 

I.  A  draft  payable  to  his  own  order  drawn  by  T.  on  C.  is  found  in  the 
possession  of  C.    The  presumption  is  that  it  was  paid  by  C.^ 

II.  An  order  for  a  sum  of  money  drawn  on  A.  by  B.  is  produced  by  A. 
The  presumption  is  that  it  was  paid  by  A-^ 

III.  Drafts  drawn  by  B.  on  A.  and  accepted  by  A.  in  favor  of  C.  are 
produced  by  A.    The  presumption  is  that  A.  has  paid  them.* 


1  Trenoulet  v.  Cenas,  6  Mart.  (N.  8.)  541;  17  Am.  Dec.  105  (1828). 

2  Gounelly  v.  McKean,  64  Pa.  St.  113  (1870) ;  Birkey  v.  McMiikin,  Id.  343   (1870) 

3  Zeigler  v.  Gray,  12  S.  &  R.  42  (1824). 

■4  Hays  V.  Samuels,  55  Tex.  500  (1881).  The  presumption  is  that  a  man  paying  a 
note  will  take  it  into  his  possession.  Haywood  f.  Lewis,  65  Ga.  224  (1880),  and  it  is 
presumed  that  the  payment  was  made  to  the  person  entitled  to  receive  the  money. 
Lipscomb  V.  De  Lemos,  68  Ala.  592  (1881) ;  Potts  v.  Coleman,  67  Id.  221  (iSSO). 


RULE    75,]  THE    TKESUMrTIOX    OF   PAYMENT.  347 

IV.  A.  produces  an  ardor  upon  him  si2:n<d  by  B.,  to  deliver  certaiu 
articles.     The  presuiuptiou  is  that  he  has  delivered  the  articles. ' 

This  rulo  i.s  founded  on  a  reasonaldo  principle,  which 
is  supported  by  numerous  cases  that  where  hills  of  exchange, 
checks,  orders  for  the  payment  of  money  or  goods,  promis- 
sory notes  or  other  ol)ligations  are  paid,  they,  as  a  general 
rule,  go  into  the  hands  of  the  person  paying  them.  It  is  to 
be  presumed,  as  ah'eady  said,  that  a  man  paying  a  written 
obligation  will  take  it  into  his  possession.^ 

<'  When,"  said  Lord  Ellenborough  to  the  jury  in  an  old 
case,  *'  there  is  a  competition  of  evidence  upon  the  question 
whether  a  security  has  or  has  not  been  satisfied  by  payment, 
the  possession  of  the  cancelled  security  ought  to  turn  the 
scale  in  his  favor,  since  in  the  ordinary  course  of  dealin^-tho 
security  is  given  up  to  the  party  Avho  pays  it."  ^  It  has 
been  held  that  Avhere  the  defense  of  payment  of  a  note  or 
other  security  is  made,  and  the  evidence  on  both  sides  is 
evenly  balanced,  the  possession  by  the  plaintiff  of  the  un- 
cancelled paper  will  turn  the  scale  in  his  favor.* 

In  case  II.  it  was  said:  "No  argument  can  be  drawn 
either  from  reason  or  convenience  why  possession  of  an 
order  by  the  person  on  whom  it  was  drawn  should  not 
prima  facie  be  evidence  of  his  having  paid  it  to  some  one ; 
and  this  whether  it  was  pajable  to  bearer  or  only  to  a  par- 
ticular person.  The  presumption  that  the  payee  would  not 
part  with  his  security  without  having  received  satisfaction 
is  a  reasonable  one,  and  although  these  orders  are  some- 
times left  with  the  persons  to  whom  they  are  directed  by 


1  Kincaid  v.  Kincaid,  8  Humph.  17  (1847). 

«  Mills  1-.  Uytlc,  I'j  Vt.  59  (184()) ;  Garloch  v.  Geortncr,  7  Wend.  19S  (1S31) ;  Weidner 
f.  Scwcigert,  9  S.  *  U.  3S5  (liS23) ;  Itubey  r.  Culbertson.  35  Iowa,  2C4  (lt>72) ;  Eoniur- 
vail  r.  Gillies,  31  Wis.  ],V2  (1S72) ;  Pcun  v.  Edward;!,  50  Ala.  C3  (1673) ;  Laue  v.  Farmer, 
13  Ark.  C4  (lSo'2) ;  Edwards  v.  Campbell,  23  Barb.  423  (18dG)  ;  Bedell  r.  Carll,  33  N.  Y. 
5S1  (lt!G5) ;  Union  Canal  Co.  r.  Lloyd,  4  W.  &  S.  303  (1842) ;  Carroll  r.  Bowie,  3  II.  & 
McC.  4.")7  (1S4S) ;  Larimoro  v.  Wells,  29  Ohio  St.  13  (1S75)  ;  Bracken  v.  Miller,  4  W.  & 
S.  102  (1S42) ;  Ritler  r.  Shenk,  101  111.  3j>7  (1SS2) ;  Sutphen  v.  Cushman,  35  111.  187 
(18C4). 

s  Brorabridgc  v.  Osborne,  1  Stark.  374  (ISlC). 

*  Doty  t'.  Jaues,  28  Wis.  319  (1S71). 


348  PRESOIPTIVE   EVIDENCE.  [rULE    75. 

careless  persons,  without  payment  having  been  made,  yet 
that  sometimes  occurs  with  receipts  which  accompany 
tradesmen's  bills,  and  no  one  would  protend  that  a  receipt 
attached  to  a  bill  would,  therefore,  not  be  competent. 
There  is  no  necessity  that  the  order  should  be  indorsed  by 
the  payee,  or  that  it  be  made  payable  to  bearer  ;  it  is  not  as 
evidence  of  the  transfer  of  the  debt,  but  as  extinguishment 
of  it,  that  possession  of  the  paper  becomes  material." 

In  an  English  case  A.  brought  an  action  against  B.  for 
money  paid  out  by  him  in  accepting  and  paying  bills  of 
exchange  for  the  accommodation  of  B.  The  bills  were  pro- 
duced by  C.  It  was  held  by  the  chief  justice  that  the  pre- 
sumption was  that  he  paid  them,  provided  it  was  shown 
that  they  were  once  in  circulation  after  being  accepted.^ 
"Show,"  said  Lord  Ellenborough,  "that  the  bills  were 
once  in  circulation  after  being  accepted,  and  I  will  presume 
that  they  got  back  to  the  acceptor's  hands  by  his  having 
paid  them.  But  when  he  merely  produces  them,  how  do  I 
know  that  they  were  ever  in  the  hands  of  the  payee,  or  any 
indorsee  with  his  name  upon  them  as  acceptor?  It  is  very 
possible  that  when  they  were  left  for  acceptance  he  refused 
to  deliver  them  back,  and  having  detained  them  ever  since, 
now  produces  them  as  evidence  of  a  loan  of  money." 
This  ruling  has  been  criticised  by  our  courts.  "  Undoubt- 
edly," said  Sharswood,  J.,  in  a  Pennsylvania  case :  ^ 
*'  they  were  no  evidence  of  a  loan,  but  having  proved  that 
they  were  originally  lent,  of  which  the  report  docs  not  state 
that  there  was  any  evidence,  why  should  not  the  possession 
of  them  by  the  acceptor,  after  maturity,  raise  the  presump- 
tion that  he  had  paid  them  ?  With  the  highest  respect  to  so 
great  an  authority  upon  nisi  prius  law,  I  may  be  allowed  to 
express  a  doubt  as  to  the  sufficiency  of  the  reason.  Con- 
trary to  established  principle,  it  presumes  a  fraud  to  have 
been  perpetrated  when  the  natural  presumption  is  that  which 


1  Pful  V.  Vanbatenberg,  2  Camp.  439  (1810) ;  and  see  Scholey  v.  AValsby,  Pcake,  25 
(1820). 

'2  Connelly  v.  McKcan,  64  Pa.  St.  118  (1870). 


RULE    75.]  THE   rRESUMmON   OF   PA'i':MEXT.  3-19 

consists  Avith  honesty.  Besides  ■u'hich  it  assumes  that  the 
holder  acquiesced  in  a  palpable  wrong.  If  the  drawee 
retains  the  bill  an  unwarrantable  time,  the  holder  could  sue 
him  in  trover.  It  is  a  reason  which  applies  as  well  to  a  bill 
which  had  been  negotiated  before  acceptance;  for  the 
indorsee  may  leave  it  in  the  hands  of  the  drawee  for  accep- 
tance. When  the  bill  is  presented  it  is  reasonable  that  the 
drawee  should  be  allowed  some  time  to  deliberate  whether 
he  will  accept  or  not.  It  seems  that  he  may  demand  twenty- 
four  hours  for  this  purpose,  and  that  the  holder  will  be 
justified  in  leaving  the  bill  with  him  for  this  period.  So 
that  even  an  indorsed  bill  produced  by  the  acceptor  after 
maturity  would  not  be  evidence  of  payment  if  this  is  a  sound 
reason.  But  surely  indorsed  bills,  checks,  or  orders  for  the 
j^ayment  of  money  are  ^jre'wa  facie  evidence  according  to 
the  general  current  of  the  authorities." 

C. 

I.  A.  is  sued  on  a  note  made  by  A.  to  the  plaintiff's  intestate.  A. 
produces  the  note  with  his  name  cancelled.  The  presumption  is  that  the 
note  is  paid.i 

II.  A  note  made  payable  to  A.  is  sued  on  by  his  representatives 
after  his  death.  When  produced  in  evidence  the  note  has  two  lines 
dra%\'n  througli  its  face.    The  presumption  is  that  it  has  been  paid.' 

III.  A  mortgage  is  cancelled.  This  raises  a  presumption  that  it  is  dis- 
charged.' 

In  case  I.  it  is  said:  *'  Pothier,  in  his  work  on  Obliga- 
tions, says  that  '  it  ought  to  be  decided  generally  from  the 
possession  of  the  debtor  that  the  creditor  shall  be  presumed 
to  have  given  up  the  security,  either  as  acquitted  or 
released,  until  the  creditor  shows  the  contrary;  as  for 
instance,  that  it  was  taken  surreptitiously.'  He  says  fur- 
ther :  'There  is  suUicient  ground  to   presume  a  donation 


1  Gray  f.  Gray,  2  Lans.  173  (1869).    Same  as  to  note  with  name  torn  off.     PoweU 
V.  Swan,  5  Dana,  1  (1S37). 

»  Pitcher  v.  Patrick,  1  Stew.  &  P.  478  (1832). 

»  Trentou  Banking  Co.  v.  Woodruff,  2  N.  J.  (Eq.)  117  (1S38). 


o50  PRESUIMPTIVE   EVIDENCE.  [llULE    75. 

and  release  of  the  debt  when  its  debtor  gives  up  the  secur- 
ity, and  the  circumstance  of  its  being  in  the  possession  of 
the  debtor  is  a  sufficient  reason  for  presuming  that  the 
creditor  has  given  it  up ;  as  that  is  the  most  natural  way  of 
the  possession  passing  from  one  to  the  other.  *  *  *  jf 
a  promissoiy  note  or  bond  should  chance  to  be  found  in  the 
hands  of  the  debtor,  or  if  it  be  crossed,  razed,  or  torn  in 
pieces,  either  of  these  circumstances  will  create  a  presump- 
tion that  it  has  been  acquitted,  which  presumption  will 
remain  until  clear  proof  be  brought  that  the  debt  is  still 
owing ;  as  that  the  appearance  came  by  violence  or  acci- 
dent.' "  In  this  case  both  circumstances  concur.  The  note 
is  found  in  the  hands  of  the  maker,  and  it  is  cancelled  by  the 
removal  of  the  maker's  name.  These  circumstances  could 
not  lawfully  exist  without  the  act  or  consent  of  the  holder 
of  the  note,  and  that  they  occurred  unlawfully  will  cer- 
tainly not  be  presumed." 

In  case  II.  it  was  said:  "If  at  any  time  before  a  final 
trial  the  note  or  bond  upon  which  the  action  has  been 
brought  undergo  any  alteration  or  receive  any  impression 
indicating  its  destruction  or  satisfaction,  it  would  appear  to 
be  but  a  necessary  and  reasonable  requisition  on  the  plain- 
tiff that  he  should  afford  the  explanation.  If  the  act  done 
was  the  result  of  mistake  or  accident,  or  if  any  effect 
was  designed  by  it  different  from  its  ordinary  import  he 
alone  must  be  presumed  to  know  the  circumstances  and  to 
possess  the  means  of  explanation." 

D. 

I.  A  receipt  of  the  payment  of  a  quarter's  rent  is  produced.  The  pre- 
sumptiou  is  that  all  former  rent  is  paid.i 

II.  A  tax  assessed  against  E.  for  the  year  18.34  is  not  included  in  the 
bill  for  1835.    The  presumption  is  that  it  is  paid.''' 

1  Brewer  v.  Knapp,  1  Pick.  337  (1823) ;  Crompton  v.  Pratt,  105  Mass.  255  (1870). 
-  Attlcborough  v.  Middleborough,  10  Pick.  378  (1830) ;  and  see  Bobbins  v.  Town- 
send,  20  7d.  345  (1838). 


RULE 


75.]  TlIK   rRESUMmON    OF   PAYMENT  351 


III.  The  question  is  whether  A.  has  paid  a  State  tax  assessed  upon 
his  lands  for  the  year  1842.  The  taxes  assessed  on  the  same  laud  are 
proved  to  have  been  paid  by  A.  for  subsequent  years.  The  presump- 
tiou  is  that  the  tax  for  1842  is  paid.i 

As  said  in  another  c:isc  like  case  I.,  this  presumption 
arises  from  the  improbability  that  the  former  rent  remained 
unpaid  when  rent  is  specifically  received  for  a  subsequent 
period.  This  presumption  obtains  as  well  where  several 
persons  are  entitled  to  receive  money,  as  in  an  individual 
case,  for  they  are  all  to  be  presumed  conusant  of  their 
rights.  This  presumption  may  be  repelled,  but  standing 
uncontradicted  it  is  decisive.^ 


E. 

I.  It  is  proved  that  on  January  1,  1880,  B.  borrowed  a  certain  sum  of 
money  from  A.  It  is  also  proved  tliat  on  a  subsequent  day  an  unascer- 
tained sura  of  money  passed  from  B.  to  A.  The  presumption  is  that  A. 
was  paid  his  debt.' 

II.  Two  persons  account  with  each  other  and  one  pays  a  balance.  The 
presumption  is  that  this  is  a  settlement  to  date.* 

III.  A.  sued  B.  for  money  alleged  by  him  to  have  been  loaned  to  B. 
A.  testifled:  "  B.  requested  me  to  send  him  $18;  I  sent  it  and  he  has  not 
paid  me  the  same  or  any  part  of  it."  There  was  no  other  evidence.  The 
presumption  was  that  the  money  was  due  to  B.* 

"There  is  no  principle  better  settled,"  is  was  said  in 
case  I.,  "  than  that  w^here  one  pa3's  money  to  another,  in  the 
absence  of  explanation  as  to  the  cause  of  payment,  the  pre- 
sumption is  that  it  was  paid  because  it  was  due,  and  not  by 
way  of  a  loan.  The  plaintiff  proved  nothing  more  than  he 
would  have  proved  by  the  production  of  a  draft  drawn  by 
the  defendant  on  him,  and  proving  that  he,  the  plainlill",  had 

1  Ilodgdon  t'.  Wright,  36  Me.  337  (1853). 

!  Decker  v.  Llviugston,  15  Johns.  479  (ISIS) ;  and  see  Walton  r.  Eklridg",  1  Allen, 
203  (18G1). 

3  Swain  v.  Ettling,  ?,2  Pa.  St.  4S6  (IfWO).  When  absence  of  other  dealings  is 
shovrn,  i)root  of  money  iiai;l  by  maker  to  payee  ■would  raise  presumption  that  it  was 
paid  on  the  note.    Somcrvail  r.  Gillies,  31  Wi?.  1,V2  (1872). 

•<  Bowling  V.  niackmau,  70  Ala.  :I03  (1"^1) ;  Nichols  r.  Scott,  12  Vt.  47  (ISIO). 

«  Sayles  v.  Olmstead,  66  Barb.  590  (1873). 


352  PRESUMPTIVE   EVIDENCE.  [rULE    75. 

paid  the  draft.  On  such  evidence  he  could  not  recover 
a2:ainst  the  drawer  of  the  draft.  Prima  facie^  the  accep- 
tor and  payer  of  the  draft  is  the  party  primarily  liable.  It 
is  presumptively  drawn  against  funds  in  the  hands  of  the 
drawee.  *  *  *  The  case  is  destitute  of  any  circum- 
stance which  can  warrant  the  inference  that  the  money  was 
advanced  as  a  loan,  unless  the  mere  fact  of  the  payment  of 
money  by  one  party  at  the  request  of  another  is  to  be  con- 
sidered as  furnishing  legal  evidence,  that  the  money  was 
advanced  as  a  loan.  This  can  not  be  held  without  over- 
turuino;  well  sustained  rules." 


F. 

I.  A  brickmaker  sues  an  architect  for  work  and  labor  performed  for 
two  years  before  bringing  the  action.  It  is  the  custom  to  pay  the  work- 
men every  Saturday  night,  and  the  plaintiff  with  the  others  has  been 
seen  waiting  to  receive  his  wages.  The  presumption  is  that  the  work- 
man had  been  paid.i 

II.  A  remittance  by  mail  is  a  presumption  of  payment  where  the 
debtor  has  been  requested  by  the  creditor  to  remit  in  this  way,  or  it  is  the 
course  of  business. 

In  a  case  like  case  I.  Gaselee,  J.,  said:  "  In  the  regular 
course,  if  a  servant  has  left  a  considerable  time,  the  pre- 
sumption is  that  all  the  wages  have  been  paid,  and  that  makes 
it  proper  to  consider  whether,  in  this  case,  the  facts  proved 
rebut  that  presumption.  In  a  case  tried  a  few  years  ago  at 
Guild  hall,  which  was  an  action  by  a  workman  at  a  sugar 
refinery,  a  witness  proved  that  the  plaintiff  had  worked 
there  for  more  than  two  years.  But  Abbott,  C,  J.,  said, 
that  he  should  direct  the  jury  to  presume  that  men  employed 
in  that  way  were  regularly  paid  every  Saturday  night, 
unless  some  evidence  was  given  on  the  part  of  the  plaintiff 
to  satisfy  the  jury  that  the  plaintiff  had,  in  point  of  fact, 

1  Lucas  V.  NovisdienBki,  1  Esp.  29C  (1795).  The  words  "  terms  cash  "  on  ah  unre- 
ceipted bill  of  goods  sent  by  a  wholesale  to  a  retail  dealer  raise  no  presumption  of 

■   law  that  the  goods  were  paid  for  before  they  were  shipped.    Wellauer  v.  Fellows, 
48  Wis.  105  (1>*79). 

2  Boyd  V.  Reed,  G  Heisk.  C31  (1871). 


RULE    75.]  THE   rPwESUiirXION   OF   PAYMENT.  353 

never  been  paid  ;  and  as  no  such  evidence  s\-as  produced 
the  plaintiff  was  nonsuited." 

G. 

I.  A.  sues  B.  for  the  price  of  eleven  hogs  sold  by  A.  to  B.  B.  pleads 
payment.  It  is  proved  tliat  A.  went  to  B.'s  honse  to  settle  for  the  hops, 
that  he  had  no  money  -when  ho  went  in,  but  had  when  he  came  out,  which 
money  he  stated  he  had  received  of  B.  The  presumption  is  that  A.  was 
paid.i 

II.  A.  gives  B.  a  promissory  note.  This  raises  a  presumption  that  B. 
was  not  at  this  time  indebted  to  A.^ 

III.  A  new  note  for  a  less  sum  than  an  old  note  is  given  in  renewal. 
The  presumption  is  that  all  claims  between  the  parties  had  been 
adjusted.' 

In  case  I.  it  was  said:  '*  If  he  had  no  money,  went  to 
defendants  to  settle  for  the  hogs,  and  when  he  left  them  had 
money,  and  said  he  got  it  from  them,  it  needs  no  argument 
to  show  that  it  is  legitimate  to  presume,  or  at  least  the  jury 
may  presume  therefrom,  that  he  did  settle  and  get  his 
pay." 

It  is  held  in  some  States  and  jurisdictions  that  the  giving 
of  a  negotiable  paper  by  the  debtor  to  the  creditor  for  the 
amount  of  an  antecedent  debt  is  a  payment  of  the  anteced- 
ent debt.'*     But  in  other  States  this  is  denied.' 

In  Strong  v.  Hirst, ^  Dickerson,  J.,  reviews  the  conflict- 
insT   authorities   at    lensfth:    "Ever   since  the  decision   in 


1  Whistler  V.  Drake,  35  Iowa,  103  (1872).  For  other  cases  in  which  payment  has 
been  inferred  from  circumstances  see  Connecticut  Trust  Co.  r.  Mclandy,  119  Mass. 
450  (1876) ;  Alvord  r.  Baker,  9  Wend.  323  (1S32) ;  Risher  v.  The  Frolic,  1  Woods,  1(2. 

»  De  Freest  x\  Bloomingdale,  5  Denio,  304  (ISiS). 

»  Piper  f.  Wade,  57  Ga.  223  (1S7G). 

4  Campbell  v.  Hays,  1  Ind.  547  (1S49) ;  Kirrhner  r.  Lewis,  27  Ind.  23  (1866) ;  Grim- 
mell  V.  Warner,  21  Iowa,  11  (1S66) ;  Green  r.  Uusscll,  132  Mass.  53S;  Ely  v.  James,  123 
Mass.  36;  Melledge  v.  Boston  Iron  Co.,  5  Cush.  153;  French  v.  Price,  24  Pick.  13;  Wes- 
ton V.  Wiley,  73  Ind.  55  ( issi) ;  Rishcr  v.  The  Frolic,  1  Woods,  92  (1S70) ;  Wallace  v. 
Agry,  4  Mason,  3"6  (1327) ;  Tisdale  r.  Maxwell,  53  Ala.  40  (1S77) ;  Copeland  v.  Clark,  2 
Ala.  333  (1311) ;  Alabama,  etc.,  Co.  r.  Sanford.  30  Ala.  703  (1^T>0). 

6  Ward  f.  Howe,  33  N.  H.  35  (1859) ;  Vail  v.  \a\\,  4  N.  Y.  312  (1850) ;  Matteson  f. 
Ellsworth,  33  Wis.  488  '1873) ;  May  i\  Gamble,  11  Fla.  407  (1874). 

e  61  Me.  9  (1871). 
23 


354  PKESTOirxIYE   EVIDENCE.  [rULE    75. 

Thatcher  y.  Dinsmore,^  the  acceptance  of  a  negotiable  note 
or  bill  of  exchange  by  the  creditor  for  a  pre-existing  debt 
has  been  held  to  be  payment  of  such  debt,  both  in  Massa- 
chusetts and  this  State,  unless  a  contrary  intention  is  shown. 
This  principle,  however,  obtains  only  in  these  States  and 
Vermont ;  the  United  States  courts  and  the  courts  of  England, 
New  York  and  the  other  States  generally  holding  the  contrary 
doctrine  —  that  the  acceptance  of  such  note  or  bill  does  not 
extinguish  the  debt,  unless  it  is  agreed  that  it  shall  operate  as 
payment.^  Such,  also,  is  the  doctrine  of  the  civil  law  and  of 
the  States  and  countries  that  have  adopted  that  system  of 
jurisprudence.^  In  order  to  protect  a  debtor  who  has  given 
negotiable  paper  for  an  antecedent  debt  from  liability  to  be 
twice  charged  with  the  same  debt,  the  courts  that  adopt  this 
latter  theory  of  the  law  upon  this  subject,  also  hold  in  gen- 
eral that  the  note  or  bill  must  be  produced  and  cancelled  or 
given  up  before  the  creditor  will  be  allowed  to  recover  upon 
the  original  consideration.'*  Thus,  each  of  these  different 
theories  of  the  law  alike  protects  the  debtor  from  liability 
to  pay  the  same  debt  twice.  While  such  is  the  law  in  other 
jurisdictions,  the  tendency  of  the  courts  in  Massachusetts  and 
Maine  has  been  to  restrict,  rather  than  extend  the  rule  laid 
down  in  Thatcher  v.  Dinsmore  and  Varner  v.  Noblehoro,^ 
Pomeroy  v.  Rice^^  Melledge  v.  Boston  Iron  Co.^  Zerawt 
V.  Wilson^  Perrin  v.  Kean^  Paine  v.  Dwinal}^  The 
courts  in  these  States  also  hold  thatthe  presumption  of  pay- 
ment is  rebutted,  and  the  creditor  may  repudiate  the  secur- 
ity taken  and  rely  upon  the  original  contract  when  there  is 


1  5  Mass.  299  (1809). 

-  Peter  v.  Deverly,  10  Pet.  532;  Ward  v.  Evans,  Ld.  Raym.  928;  Musser  v.  Price,  4 
East,  197 ;  Vail  v.  Foster,  4  N.  Y.  312 ;  Ward  v.  Howe,  38  N.  H.  35. 

2  Wallace  v.  Agry,  4  Mason,  344. 

*  Davis  I'.  Dodd,4  Taunt.  C02 ;  Holmes  v.  DeCamp,  IJohns.  34;  Hughes  «.  AVlieeler, 
8  Cow.  77;  Schemmelpeuich  v.  Bayard,  4  Pet.  264;  Rangier  v.  Morton,  4  Watts,  203. 
'  2  Me.  121. 
«  16  Pick.  22. 
"  5  Gush,  158. 
8  8  Cush.  424. 
0  19  Me.  355. 
JO  53  Me.  53. 


RULK  7().]    THE  TRKSUMPTIOX  OF  PAVMENT.  355 

finy  fraud  in  giving  it,  or  it  is  accepted  under  any  ignorance 
of  the  facts  or  a  misapprehension  of  the  rights  of  the  par- 
ties.^ 

A  payment  made  on  a  general  account  is  presumed  to 
to  have  been  applied  to  the  oldest  items. ■•*  "Where  payment 
is  voluntarily  made  and  accepted  as  a  full  compensation,  it 
is  to  bo  presumed  that  the  parties  measured  the  loss  by  the 
same  rule  that  the  law  would  apply  to  it.^  But  when  the 
payee  of  a  note,  at  the  time  it  becomes  due,  takes  a  note 
for  the  same  amount  signed  by  persons,  some  of  whom  are 
not  parties  to  the  first  note,  and  retains  the  first  note,  there 
is  no  presumption  of  law,  in  the  absence  of  an  agreement  to 
that  effect  that  he  receives  the  second  note  in  payment  of 
the  first.*  The  presumption  of  law  is  that  a  bill  or  order  on 
a  third  person  for  a  debt  is  taken  as  a  conditional  payment 
only.*^ 

RUL.E  76. — The  presumption  in  Rule  75  (B  and  C) 
docs  not  arise,  where  the  debtor  had  the  means  of 
obtaining  possession  of  or  of  cancelling  the  obliga- 
tion other  than  by  paying  it  (H),  nor  in  D  and  E 
where  the  debt  paid  was  not  the  debtor's  alone  (J). 

Illustrations. 

H. 

I.  A  father  held  the  note  of  his  son  for  §425.  On  the  father's  death 
his  representatives  sue  on  the  note;  but  the  son  produces  it  cancelled. 
It  appears  that  he  had  the  means  of  access  to  his  father's  papers.  There 
is  no  presumption  that  the  note  had  been  paid.' 

In  case  I.  it  was  .said:     "  Is  the  production  of  this  note 
by  the  defendant,  under  the  facts  of  this  case,  evidence  of 


1  French  v.  Price,  24  Pick.  21 ;  Paine  v.  Dwinal,  53  Me.  53. 
»  Bancroft  r.  Holton,  .W  N.  H.  141  (IST'.O. 
»  Uobesoa  v.  Schuylkill  Xav.  Co.,  3  Grant's  Gas.  190  (1S55). 
*  Woods  V.  Woods,  127  Mass.  141   (IST'J). 

B  Haines  v.  Pcarce,  41  Md.  221  (1S71) ;  Peter  r.  Beverly,  10  Pet.  532  (1836). 
«  Grey  r.  Grey,  47  N.  Y.  533  (1972) ;  Kenney  v.  Public  Admimstrator,  2  Bradf.  319 
(1853). 


356  PEESUMPTIVE  EVIDENCE.        [rULE  77. 

its  discharge  when  it  is  proved  not  to  have  been  paid  or  sat- 
isfied. I  think  it  is  not.  Pothier,  (Obligations,  73)  says, 
that  Boiseau  holds  that  possession  of  the  note  affords  a  pre- 
sumption of  its  payment ;  but  if  he  allege  a  release  he  must 
prove  it ;  for  a  release  is  a  donation  and  a  donation  ought  not  to 
be  presumed.  Pothier  differs  and  thinks  it  should  be  pre- 
sumed unless  the  creditor  shows  the  contrary.  But  Pothier 
agrees  with  Boiseau,  that  if  the  debtor  was  the  general  agent  or 
clerk  of  the  creditor  having  access  to  his  papers,  possession 
alone  might  not  be  a  sufficient  presumption  of  payment  or 
release  —  so  if  he  was  a  neighbor  into  whose  house  the 
effects  of  the  creditor  had  been  removed  on  account  of  a  fire. 
The  latter  proposition  seems  applicable  in  this  case.  Here 
the  case  shows  without  contradiction  that  the  defendant  liv- 
ing at  home  with  his  father  had  a  key  that  fitted  his  father's 
desk  where  the  note  was  kept. 


I.  A.  was  indebted  to  B.  on  a  note  made  by  himself  and  others.  After 
the  maturity  of  the  note  A.  renders  services  to  B.  who  pays  him  money 
therefor.  la  a  suit  on  the  note  by  B.  there  is  no  presumption  that  A. 
had  paid  it.i 

In  case  I.  it  was  said,  that  as  all  the  parties  to  the  note 
were  joint  makers  and  equally  bound,  there  could  be  no 
presumption  that  A.  settled  what  was  not  exclusively  his 
own  debt. 

RULE  77.  —  Tlie  presumption  of  payment  is  stronger 
than  the  presumption  of  continuance,  but  weaker 
than  the  presumption  of  innocence. 

Illustralions. 

I.  An  action  is  brought  on  an  administrator's  bond  to  compel  him  to 
account  for  and  pay  over  the  amount  of  a  private  debt  due  from  him  to 
the  intestate.     Twenty-four  years  have  elapsed  since  the  boud  was  given. 

1  Mechanics'  Bank  v.  Wright,  53  Mo.  153  (1873) 


RULE    77.]  THE    rRESUMPTIOX    OF   TAYllENT.  357 

There  is  no  proof  of  a  decree  of  distribution  ordering  him  to  pay  to  the 
heirs.  Therefore  the  presumption  of  payment  and  the  presumption  of 
innocence  (arising  from  the  fact  tliat  lie  would  have  violated  his  duty  in 
paying  without  a  decree)  conflict,  and  the  latter  must  prevail. * 

In  case  I.  it  was  said:  "It  has  been  further  contended 
that  the  facts  furnished  a  legal  ground  on  which  the  jury 
miglit  have  presumed  that  the  defendant  had  paid  or  ac- 
counted to  the  heirs  of  the  intestate  for  the  amount  of  tho 
notes  without  the  formality  of  any  proceeding  in  the  pro- 
bate court  by  way  of  a  settled  account  and  a  decree 
thereon,  and  that  the  judge  should  have  left  this  question 
to  the  jury.  The  obvious  reply  to  this  objection  and  argu- 
ment, is  that  the  law  does  not  presume  that  an  administrator 
does  wrong;  it  does  not  presume  that  tho  defendant  did 
what  by  law  he  had  no  right  to  do,  that  is  that  he  had  made 
an  unauthorized  payment  to  the  heirs  under  the  circum- 
stances mentioned.  He  was  bound  to  account  to  the  judge 
of  probate,  and  he  had  no  right  to  pay  the  heirs  but  under 
decree.  To  presume  it  would  be  to  presume  against  law 
and  right.  We  do  not  mean  to  say  that  had  there  been 
proof  that  the  amount  of  the  notes  had  been  actually 
apportioned,  and  paid  to  to  the  several  heirs,  though  without 
a  decree  of  the  probate  court,  it  might  not,  in  a  hearing  in 
chancery,  be  a  bar  to  an  execution  for  any  thing  beyond 
nominal  damages.  It  would  be  as  strange  to  sanction  tho 
presumption  where  mentioned  as  that  which  was  relied  upon 
in  another  part  of  the  argument  to  prove  that  the  intestate 
had  forjrivcn  the  debt  due  on  the  notes.  Wrongs  and  gifts 
are  not  to  be  presumed;  they  must  be  proved." 

1  Potter  f.  Titcomb,  7  Me.  302  (1S31). 


CHAPTEE    XVI. 

PRESmiPTIONS   CONCERNING  FOREIGN  LAWS. 

RULE  78.  —  Where  in  one  State  or  country  the  law  of 
another  State  or  country  is  the  subject  of  inquiry, 
the  law  of  the  forum  will  be  presumed  to  be  the 
law  of  the  foreign  State  or  country.^ 

Illustrations. 

I.  An  action  is  brought  in  New  York  on  a  policy  of  life  insurance, 
•which  contained  a  forfeiture  clause,  "if  the  insured  should  die  in  the 
known  violation  of  any  law  of  any  State  or  of  the  United  States,"  The 
insured  was  killed  in  Louisiana  while  attempting  to  take  the  property 
of  another  by  force  to  satisfy  a  debt.  This  being  a  violation  of  law 
by  the  common  law  of  New  York,  the  presumption  is  that  it  is  so  in 
Louisiana.* 

1  ISIc Anally  v.  O'Neal,  56  Ala.  299  (1876) ;  Connor  v.  Trawick,  37  Ala.  289  (1861) ; 
Averett  v.  Thompson,  15  Ala.  678  (1849) ;  Cox  v.  Morrow,  14  Ark.  603  (1S54) ;  Uobinsoa 
V.  Dauchy, 3  Barb.  20  (1&48) ;  Stokes  v.  Macken,62  Barb.  149  (ISCl) ;  Ilenthorn  v.  Doe, 

1  Blackf.  157  (1S22) ;  Abell  v.  Douglas,  i  Denio,  305  (1847) ;  Starr  v.  Peck,  1  Hill,  270 
(1S41) ;  Crake  v.  Crake,  18  Ind.  156  (1862) ;  Dalton  v.  Lusk,  16  Mo.  Ill  (1852) ;  Henry 
V.  Uoot,  33  N.  Y.  554  (1865) ;  Goodman  v.  Griffin,  3  Stew.  (Ala.)  160  (1830) ;  Re  High, 

2  Doug.  (Mich.)  515  (1847);  Holmes  v.  Mallett,  1  Morris  (la),  82  (ls40) ;  Dubois  v. 
Mason,  127  Mass.  37  (1879) ;  Warren  v.  Lusk,  16  Mo.  Ill  (1852) ;  Davis  i .  Bowling,  13 
Mo.  651  (1854) ;  Hydrick  v.  Burke,  30  Ark.  124  (1875)  ;  Seaborn  v.  Henry,  30  Ark.  469 
(1875) ;  Hall  v.  Pillow,  31  Ai-k.  32  (1876) ;  Buckinghouse  v.  Gregg,  19  Ind.  401  (1862) ; 
Schurman  v.  Marley,  29  Ind.  459  (186S) ;  Rogers  v.  Zook,  86  Ind.  237  (1882) ;  Hadcn 
V.  Ivey,  51  Ala.  381  (1874) ;  Cahalan  v.  Monroe,  70  Ala.  271  (1881) ;  Evans  v.  Covington, 
70  Ala.  440  (1881);  Brown  v.  San  Francisco  Gas  Co.,  58  Cal.  426  (1881);  Alford  v. 
Baker,  53  Ind.  279  (1876)  ;  Selma  &  R.  Co.  v.  Lacy,  43  Ga.  461  (1871) ;  Meyer  v.  McCabe, 
73  Mo.  236  (1880) ;  Holmes  v.  Broughton,  10  Wend.  78  (1833) ;  Cressy  v.  Tatom,  9  Oreg. 
541  (1881).  McLear  v.  Hunsickcr,  29  La.  Ann.  539  (1877),  decides  that  an  officer  in 
another  State  will  bo  presumed  to  have  no  greater  powers  than  he  has  by  the  law 
of  Louisiana.  Paine  v.  Xoelke,  43  N.  Y.  (S.  C.)  176  (1878).  The  courts  ol'  Indiana  will 
presume  that  a  promissory  note  made  payable  in  another  State  (e.g.,  Kentucky)  ia 
governed  by  the  common  law  and  not  by  the  law  merchant.  Alford  v.  Baker,  53 
Ind.  279  (1876).  "  Where  a  note  is  made  and  made  payable  in  another  State,  and 
bears  a  higher  rate  ol  interest  than  is  allowed  by  law  in  this,  but  suit  is  instituted 
upon  it  for  collection,  it  is  not  necessary  to  plead  any  law  of  such  State  touching 
interest.  The  court  presumes  the  common  law  to  be  in  force  in  such  other  State 
of  the  United  States,  with  perhaps  an  exception  or  two;  that  law  established  no 
rate  of  interest,  and  hence  we  presume  the  contract  valid,  according  to  existing 
law,  when  and  where  it  is  made."  Buckingham  v.  Gregg,  19  Ind.  401  (1862) ;  Men- 
denhall  v.  Gatcly,  13  Ind.  150  (1862). 

2  Bradley  v.  Mutual  Benefit  Life  Ins.  Co.,  3  Lans.  341  (1870). 

(  358  ) 


RULE  78.]      PRESUMTTIONS  CONCERNING  FOREIGN  LAMS.      359 

II.  An  action  is  brought  in  Missouri  ou  a  sight  bill  of  exchange  drawn 
in  New  Yorlc.  Days  of  grace  upon  such  bills  have  been  abolished  by 
statute  in  Missouri.  The  presumption  nevertheless  is  that  in  New  Yorli 
grace  is  still  allowed  as  at  common  law.' 

III.  A.  brings  an  action  in  New  York  on  a  policy  of  insurance  made 
in  New  Jersey  on  the  life  of  B.,  in  which  he  had  no  interest.  A.  can  not 
recover,  for  such  an  insurance  was  Invalid  at  common  law,  and  will  be 
presumed  to  be  also  invalid  in  New  Jersey.' 

IV.  An  action  is  brought  in  Massachusetts  on  a  contract  made  by  an 
attorney  at  law  in  New  York,  to  conduct  a  litigation,  in  consideration  of 
receiving  ten  per  cent  of  the  amount  recovered.  The  presumption  is  that 
such  a  contract  is  void  in  New  York.^ 

V.  In  an  action  brought  in  California  on  a  judgment  obtained  in  New 
York,  interest  is  claimed.  Held,  that  interest  could  not  be  recovered 
without  showing  that  the  law  of  New  York  allowed  interest.  The  com- 
mon law  did  not,  and  that  law  will  be  presumed  to  be  in  force  in  New 
York.* 

VI.  A  will  made  in  Georgia  is  before  the  courts  of  xUabama.  .The 
words,  "  surviving  children,"  are  to  be  construed.  The  construction 
given  to  these  words  by  the  decisions  of  the  Alabama  courts  is  presumed 
to  be  the  construction  which  the  words  would  receive  in  Georgia.^ 

VII.  To  a  promissory  note  made  in  Kentucky  and  sued  on  in  Illinois, 
the  plea  is  made  that  there  was  a  want  of  consideration.  It  is  objected 
that  the  plea  is  bad  in  not  alleging  tliat  want  of  consideration  is  a  good 
defense  to  a  note  by  the  laws  of  Kentucky.  The  plea  is  held  good  as  this 
will  be  presumed.^ 

VIII.  A  limitation  over  by  deed  after  a  life  estate  of  personal  property 
made  in  Virginia,  is  sought  to  be  enforced  in  North  Carolina.  The 
attempt  fails,  for  the  presumption  is  that  such  a  limitation  is  void  in 
Virginia.' 

IX.  In  an  action  in  Alabama  on  a  promissory  note,  the  question  arises 
•whether  a  promissory  note  is  negotiable  in  Georgia,  Promissory  notes 
being  negotiable  by  the  common  law,  the  presumption  is  that  it  is.* 

X.  A  married  woman  claims  in  the  courts  of  Arkansas  a  sum  of  money 
derived  from  the  sale  of  her  property  in  Tennessee.    Atcommon  law  this 


1  I-ncas  V.  Lndcw,  2S  Mo.  rAI  (1850). 

«  Reese  v.  Mutual  Benefit  Ins.  Co.,  23  X.  Y.  517  (ISGl). 

«  Thurston  v.  Pcrcival,  1  Tick.  415  (18-2r>). 

*  Thompson  v.  Morrow,  2  Cal.  99  (1S52). 
6  Sharp  f.  Sharp,  35  Ala.  574  (ISCO). 

•  Crouch  v.  Hall,  15  111.  2G3  (1S53). 

■t  Griffin  v.  Custer,  5  Ircd.  (Kq.)  413  (1S48). 

«  Dunn  r.  Adam.s  1  Ala.  527 ;  35  Am.  Dec.  42  (1S40). 


360  PRESUMPTIVE   EYIDElSrCE.  [rULE    78. 

belonged  to  her  husband.    The  presumption  is  that  it  is  so  in  Tennessee 
and  the  married  ■woman  suing  in  Arkansas  can  not  recover. ^ 

XI.  The  question  in  Kentuclcy  is  Tvhether  a  note  executed  in  Maryland 
is  usurious  by  the  laws  of  that  State.  There  is  no  presumption  that  it  is, 
but  the  statute  must  be  proved.^ 

XII.  A  contract  made  in  Pennsylvania  is  sued  on  in  Kentucky,  which 
at  common  law  would  be  champcrtous.  The  presumption  is  that  it  is 
void  in  Pennsylvania.' 

XIII.  In  Alabama,  an  action  is  brought  by  a  sole  distributee  of  the 
property  of  an  intestate  in  Mississippi.  At  common  law  the  title  to  the 
personal  property  of  an  intestate  is  cast  upon  his  personal  representa- 
tive and  not  upon  his  next  of  kin.  Such  will  be  presumed  the  law  in 
Mississippi.* 

XIV.  A  marriage  de  facto  is  proved.  The  presumption  is  that  it  is 
according  to  the  laws  of  the  country  where  it  took  place.* 

XV.  A  note  made  in  Kansas  on  Sunday  is  sued  on  in  Georgia.  In 
Georgia,  contracts  made  on  Sunday  are  void.  The  presumption  is  that 
thejf  are  also  void  in  Kansas. ^ 

In  case  I.  it  was  said:  **  In  the  absence  of  proof  we  are 
justified  in  presuming  the  law  of  Louisiana  to  be  the  same 
with  the  law  of  this  State,  and  that  whatever  would  be  a 
violation  of  the  law  here,  may  for  the  purposes  of  this  case 
be  considered  a  violation  of  the  law  there.  *  *  *  That 
the  act  committed  by  the  insured  was  a  violation  of  the  law, 
there  can  bo  no  doubt." 

In  case  IV.  Parker,  C.  J.,  said:  '*  It  has  been  suggested 
that  as  the  contract  was  made  in  reference  to  a  suit  pending 
in  New  York  it  is  no  breach  of  the  laws  of  this  State,  for 
it  may  be  that  a  similar  contract  would  be  good  by  the  laws 


1  Hydrick  v.  Burke,  30  Ark.  124  (1875) ;  Smith  v.  Peterson,  63  Ind.  243  (1S7S). 

«  Greenwade  V.  Greenwadc,  3  Dana,  497  (1835) ;  Forsyth  v.  Baxter,  3  111.  'J  (1839). 

3  Miles  V.  Collins,  1  Mete.  (Ky.)  311  (1858). 

*  Ueese  v.  Harris,  27  Ala.  301  (1855). 

6  Raynham  v.  Canton,  3  Pick.  293  (1825).  In  Com.  v.  Kinney,  120  Mass.  387  (1876) 
on  an  indictment  for  bigamy  it  was  said  :  "  The  law  of  Ireland,  being  a  foreign  law, 
is  matter  of  fact  of  which  our  courts  have  no  judicial  knowledge  without  proof;  and 
no  proof  of  it  was  introduced  at  the  trial.  A  marriage  solemnized  by  a  priest  and 
under  which  tlio  parties  have  cohabitated  as  husband  and  wife,  in  prima  f arte  a  valid 
marriage  everywhere."  And  see  U.  S.  v.  Jennegen,  i  Cranch  0.  C.  118  (1830) ; 
Hynes  v.  McDerraotl,  82  N.  Y.  44  (1880). 

6  am  V.  Wilker,  41  Ga.  449  (1871). 


RULE  78.]      niESUMPTIONS  CONCERNING  FOREIGN  LAWS.      3G1 

of  New  York,  we  having  no  evidence  that  there  is  any  law 
of  that  State  against  champerty,  or  that  such  a  contract  as 
this  would  constitute  the  offense.  But  if  maintenance  or 
champerty  is  malum  in  se  and  an  offense  at  common  law  it 
is  to  be  presumed  without  any  statute  that  tlie  same  law  is  in 
force  there.  •  *  *  It  certainly  would  bo  a  violation  of 
the  comity  due  to  a  sister  State  to  uphold  a  contract  which 
would  be  void  hero  merely  because  the  mischief  contem- 
plated was  to  be  executed  there.  As  well  might  an  action 
be  maintained  upon  a  promise,  the  consideration  of  which 
■was  the  commission  of  an  assault  and  battery  in  New 
York." 

*'As  a  general  rule,"  it  was  said  in  case  ^t:!.,  "  courts 
•will  not  take  judicial  notice  of  the  laws  of  another  country, 
but  they  must  be  alleged  and  proved  as  facts.  Especially 
is  this  the  case  as  to  statutes  and  local  usages  of  such  coun- 
try. But  the  rule  is  not  without  qualification.  In  the 
absence  of  all  proof  to  the  contrary  the  common  law  is 
presumed  to  prevail  in  the  States  of  the  Union.  On  a 
common-law  question  the  courts  of  one  State  will  assume 
that  the  common  law  is  in  force  in  a  sister  State.  By  the 
common  law  a  want  of  consideration  is  a  good  defense  to 
a  note  in  the  hands  of  a  payee  or  an  indorsee  after  matur- 
ity. The  presumption  here  being  that  the  common  law 
prevails  in  Kentucky  the  makers  have  a  perfect  defense  to 
the  note. 

In  case  VIII.  it  was  said:  "  By  the  common  law  such  a 
limitation  of  a  chattel  by  a  deed  is  void ;  for  the  life  estate 
consumes  the  entire  interest.  We  presume  the  common 
law  prevails  in  that  State,  until  the  contrary  appears." 

«'  There  is  no  proof,"  it  was  said  in  case  IX.,  "  what  the 
law  of  Georgia  is,  or  whether  there  has  been  by  statute  any 
chanf^e  of  the  common  law  which  we  judicially  know  obtains 
in  all  the  States  of  the  Union,  and  in  the  absence  of  such 
proof  we  will  presume  that  the  common  l:iw  prevails. 
Though  some  doubt  was  at  one  time  thrown  over  the  ques- 


3G2  PRESU3IPTIYE   EVIDENCE.  [kULE    78. 

tion  by  the  scruples  of  Lord  Holt,  it  is  now  generally  con- 
ceded that  promissory  notes  were  negotiable  at  common 
law  ;  such  being  the  case,  and  presuming,  as  we  must,  that 
such  is  the  law  of  the  State  of  Georgia,  the  declaration 
which  treats  this  note  as  an  instrument  negotiable  by  the 
law  merchant  is  correct." 

In  case  XI.  it  was  said  :  "  Each  State  has  its  own  peculiar 
statutes  on  the  subject  of  interest  as  well  as  usury.  In 
some  of  the  States  a  greater  rate  of  interest  may  be  reserved 
by  special  contract  on  the  loan  of  money  than  is  collectible 
on  ordinary  bonds  or  notes,  and  in  others  a  much  higher 
rate  of  interest  may  legally  be  reserved  than  is  sanctioned 
by  the  laws  of  Kentucky  ;  and  in  others  there  are  no  prohib- 
itory statutes  against  usury.  What  may  be  the  legal  rate 
of  interest  in  Maryland,  and  whether  any,  and  if  any,  what 
laws  existed  in  said  State  against  usury  at  the  time  when 
said  contract  was  made,  this  court  can  not  judicially  know. 
These  are  facts  to  be  averred  and  proven  like  other  facts. 
And  as  in  this  case  they  are  neither  averred  nor  attempted 
to  be  proven,  this  court  are  not  warranted  in  concluding 
that  the  note  was  executed  as  a  contract  for  a  loan  of  money 
in  violation  of  any  law  of  said  State." 

In  case  XII.  it  was  said :  "  The  court  will  presume,  until 
the  contrary  is  alleged  and  proved,  that  the  common  law  is 
yet  in  force  in  the  State  of  Pennsylvania.  The  plaintiff, 
in  attempting  to  manifest  his  right  to  a  part  of  the  judg- 
ment, exhibits  a  contract  void  by  the  common  law.  *  *  » 
It  is  possible  that  the  common  law  has  been  altered  in 
Pennsylvania  by  statute,  and  that  the  contract  under 
which  the  plaintiff  claimed  was  not  void.  We  find  in 
the  record  a  deposition  tending  to  show  that  this  is  true. 
If  it  be  true  that  such  change  has  been  made  by  statute, 
the  fact  should  have  been  stated  in  the  petition  and  then 
proved." 

In  case  XV.  it  was  said:  ''The  main  and  controlling 
question  made  by  the  record  is  whether  a  note  executed  on 


RULK  78.]      PKESUJIPTIONS  CONCERNING  FOKEIGN  LAWS.      ci(J3 

the  Sabbath  clay,  and  given  in  the  business  or  work  of  the 
parties'  ordinary  calling,  and  not  in  pursuance  of  works  of 
necessity  or  charity,  is  such  a  contract  as  may  bo  enforced 
under  the  laws  of  this  State.  There  is  nothing  disclosed 
by  this  record  rclativ^e  to  the  laws  of  Kansas  on  this  sub- 
ject, and  the  principle  of  lex  loci,  or  the  doctrine  of  com- 
ity, as  to  how  far  Georgia  would  permit  contracts  violative 
of  her  public  policy  to  be  enforced,  conceding  such  con- 
tracts to  bo  valid  outside  her  territorial  limits  where  made, 
but  conflicting  with  her  own  system  of  laws  and  public 
policy,  is  a  question  we  need  not  decide,  as  there  is  nothing 
in  this  record  which  would  authorize  this  court  to  presume 
such  law  or  statutory  provision  to  exist.  Sitting  as  we  do 
to  administer  the  laws  of  this  State  in  questions  to  be 
determined  by  our  courts,  we  are  necessarily  governed  by 
the  laws  as  we  find  them  existing  here,  except  proof  is  made 
of  different  provisions  of  law  existing  when  the  contract 
souf^ht  to  be  enforced  was  executed.  As  a  general  rule  the 
laws  of  the  place  when  proved,  lex  loci  contractus,  will  be 
administered  by  courts  wherever  the  enforcement  of  the 
contract  is  invoked.  But  to  this  general  rule  there  are 
exceptions ;  for  courts  will  not  lend  their  processes  or  pow- 
ers to  enforce  laws  which  contravene  the  public  policy,  or 
are  immoral,  or  in  conflict  with  the  fundamental  principles 
of  conscience,  or  morality  pervading  the  Legislature  of  the 
State  when  the  power  of  such  court  is  invoked;  and  this 
court,  while  it  broadly,  and  in  the  widest  sense,  recognizes 
comity  upon  all  questions  within  its  legitimate  scope  and 
operation,  has,  nevertheless,  asserted  in  its  prerogatives  of 
justice  these  exceptions  to  the  general  rule.  In  this  case, 
however,  the  question  is  what  construction  courts  will  give 
to  the  law  of  contracts,  where  there  is  no  proof  of  the  lex 
loci/'  And  we  hold,  in  the  absence  of  proof  to  the  contrary, 
the  legal  presumption  is  that  the  lex  loci  is  the  same  as  our 
own.  "We  are  sustained  in  this  presumption  by  the  fact 
that  a  contrary  view  would  suppose  the  people  of  Kansas  to 


3G4  PRESUJIPTIVE   EVIDENCE.  [rULE    78. 

have  annulled  the  decalogue,  and  to  have  permitted  by  law 
the  disregard  of  Christian  obligation,  and  not  only  forgot- 
ten, but  violated  the  injunction,  <' Remember  the  Sabbath 
day  to  keep  it  holy;  on  it  thou  shalt  do  no  manner  of 
work."  This  State  for  over  a  century  has  recognized  upon 
her  statutes  the  sanctity  of  the  obligation,  and  punished  its 
violation.  All  worldly  labor  or  work  done  in  the  ordinary 
calling  of  our  people  on  the  Lord's  day  is  forbidden  under 
penalties,  and  only  such  acts  as  necessity  invokes  or  charity 
inspires  are  exempted  from  their  infliction.  This  court  in 
the  thirty-first  Georgia  ^  has  expressly  ruled  that  the  payment 
of  money  on  a  note  was  a  transaction  in  violation  of  the 
law,  it  being  made  on  the  Lord's  day  or  Sunday,  and  did 
not  constitute  such  an  acknowledgment  of  the  debt  as  would 
raise  the  presumption  of  a  promise  sufficient  to  take  the 
case  out  of  the  Statute  of  Limitations  ;  that  the  act  of  pay- 
ment was  void,  and  all  the  obligations  growing  out  of  it 
were  null  and  void.  And  this  is  the  almost  unbroken  cur- 
rent of  American  authority.  *  A  promissory  note  given  on 
a  Sunday  is  void  as  between  the  parties,,  and  subsequent 
promise  to  pay  it  will  not  make  it  valid.'  ^  *A  note  signed 
and  delivered  on  Sunday  is  invalid.' ^  *A  note  given  on 
Sunday  for  the  price  of  a  horse  sold  on  that  day  is  void.'  * 
And  the  same  doctrine  is  laid  down  in  the  following  cases: 
38  Mississippi,  344;  16  Iowa,  49;  9  Minnesota,  194;  8 
Minnesota,  18  and  41;  9  New  Hampshire,  500;  14  New 
Hampshire,  233;  41  New  Hampshire,  215  ;  4  Indiana,  619; 
13  Indiana,  565;  1  Hunt's  Cases  (Tennessee),  261;  3  Wis- 
consin, 343;  5  Alabama,  467;  10  Alabama,  566;  18  Ala- 
bama, 280;  25  Alabama,  528;  27  Alabama,  281;  18 
Vermont,  379;  24  Vermont,  318;  Michigan  Reports,  2 
Douglass,  73.  And  we  might  expand,  if  we  had  time,  this 
cloud  of  authority  in  support  of  a  doctrine  almost  without 
exception,  and  those  rather  in  modification  of  the  rule  than 

1  p.  607.  3  48  Me.  198. 

2  Pope  V.  Lynn,  50  Me.  83.  *  26  Me.  464. 


RULE  79.]  PRESUMPTIONS  CONCERNING  FOREIGN  LAWS.  305 

in  conflict  with  it.  Grouping,  however,  this  mass  of  author- 
ity from  every  section  of  this  continent,  wo  think  it  would 
be  unjust  to  the  Christian  civilization  of  this  age  to  permit 
any  other  presumption  than  tiio  one  wo  have  laid  down, 
to  wit :  that,  in  the  absence  of  proof  of  any  law  to  the  con- 
trary, the  presumption  is  that  the  law  of  this  contract  must 
be  held  to  be  the  same  as  our  own.  And  as  our  courts  have 
hold  all  contracts  made  in  the  pursuance  of  tho  ordinary 
callings  or  business  on  the  Lord's  day  or  Christian  Sabbath, 
to  be  void,  it  follows  that  this  court  so  adjudges  in  the  case 
at  bar,  and  the  judgment  of  court  below  is,  on  this  ground, 
reversed." 

RULE  79.  — Acts  which  are  criminal  by  the  law  of  the 
forum  and  arc  malum  in  so,  will  ho  presumed  to  be 
crimes  in  a  foreign  state  or  country. 

Illustrations. 

I.  The  question  is  in  Massachusetts  whether  an  assault  on  the  person 
is  a  crime  in  Louisiana.    The  presumption  is  that  it  is.^ 

II.  A.  is  proved  to  have  robbed  B.  while  in  France,  and  to  have  killed 
C.  while  in  England.  Tlie  question  arising  iji  a  proceeding  in  the  courts 
of  an  American  State,  the  presumption  is  tliat  these  acts  were  crimes  by 
the  laws  of  France  and  England  respectively. ^ 

III.  In  the  course  of  a  proceeding  in  the  courts  of  an  American  State, 
the  question  arises  whether  C,  who  sold  goods  on  Sunday  in  England, 
andD.,  who  sold  liquor  in  Scotland  without  a  license,  have  been  guilty 
of  criminal  acts.  The  American  courts  will  refuse  to  presume  that  they 
have.' 

Robbery,  larceny  and  assaults  upon  the  person  which  are 
criminal  offenses  by  the  common  law,  and  the  laws  of  all 
civilized  countries,  will  in  one  State  be  presumed  to  be 
crimes  in  another.* 


1  Cluff  I'.  Mutual  Benefit  Life  Ins.  Co.,  13  Allen,  309  (1S6C). 

2  Id. 
8  Id. 

*  Cluff  r.  Mutual  Bencnt  Life  Ins.  Co.,  13  .Ulcn,  30^  (1SC6). 


3G6  PRESOIPTIVE   EVIDENCE.  [rULE    80. 

RULE  80. — The  term  '*  another  state  or  country" 
within  Rule  78  does  not  (in  the  United  States)  include 
a  state  or  country  which  has  never  hcen  subject 
to  the  conunon  law  of  England  (A)  or  a  tribe  or 
nation  uncivilized  (B). 

Illustrations. 
A. 

T.  An  action  is  brought  in  Missouri  to  recover  damages  for  breach  of 
a  parol  promise  made  iu  Texas  to  accept  certain  drafts.  Such  a  promise 
was  valid  at  common  law,  but  is  not  enforceable  under  the  Missouri 
statute.  The  court  can  not  presume  that  the  common  law  is  in  force  in 
Texas,  and  the  plaintiff  fails.^ 

II.  In  a  dispute  concerning  property  in  the  New  York  courts,  the  law 
of  Eussia  as  to  husband  and  wife  is  iu  question.  There  is  no  pre- 
sumption that  the  common  law  of  New  Yorli  on  this  question  prevails  in 
Russia.^ 

III.  The  question  arises  in  California  as  to  what  is  the  law  in  Texas 
on  a  certain  point.  There  is  no  presumption  that  the  rule  on  the  point 
iu  Texas  is  the  rule  of  the  common  law.' 

In  case  I.  it  was  said  :  "  Counsel  for  the  plaintiff  ask  us 
to  presume,  in  the  absence  of  evidence,  that  the  common 
law  is  in  force  in  Texas.  The  presumption  can  only  be 
indulged  with  reference  to  those  States  which,  prior  to 
becoming  members  of  the  Union,  were  subject  to  the  laws 
of  England.  Texas  was  a  part  of  the  Spanish  possessions 
on  this  continent,  and  if  the  common  law  ever  prevailed 
there  or  now  prevails  there  it  must  be  by  virtue  of  some 
statutory  provision  of  which  we  can  not  take  judicial 
notice." 

In  case  III.  it  was  said:  "  The  will  must  be  interpreted 
according  to  the  law  of  Texas,  where  it  was  made  and 


1  state  V.  Mulhall,  72  Mo.  523  (18?0). 

*  Savage  v.  O'Neil,  44  N.  Y.  208  (1871),  overruling  Savage  v.  O'Xeil,  42  Barb.  374 
(1864).    And  see  Owen  v.  Boyle,  15  :Me.  147  (1838) ;  32  Am.  Dec  143. 
«  Norris  v.  Uarris,  15  Cal.  2-JG  (1860). 


RULE  80.]  TRESUMPTIONS  CONCERNING  FOREIGN  LAWS.  3G7 

wlioro  the  property  upon  -which  it  operated  was  situated. 
To  that  law  we  must  resort  to  determine  the  capacity  of  tho 
testator,  the  extent  of  his  power  of  disposition,  and  the  con- 
ditions upon  which  tho  power  of  alienation  vested  in  the 
guardian  was  to  be  exercised.^  In  the  present  case  there  is 
no  proof  what  the  law  of  Texas  is  upon  these  subjects. 
One  of  the  counsel  of  the  defendants  insists  that,  in  the 
absence  of  such  proof,  the  rule  is  to  presume  the  existence 
of  the  common  law  and  to  be  governed  by  its  principles. 
There  is  no  doubt  that  the  common  law  is  the  basis  of 
the  laws  of  those  States  which  were  originally  colonies  of 
England,  or  carved  out  of  such  colonies.  It  was  imported 
by  the  colonists  and  established  so  far  as  it  was  applicable 
to  these  institutions  and  circumstances,  and  was  claimed  by 
the  Congress  of  the  United  Colonies  in  1774  as  a  branch  of 
these  '  indubitable  rights  and  liberties  to  which  the  respec- 
tive colonies  '  were  entitled.^  In  all  the  States  thus  hav- 
ing a  common  origin,  formed  from  colonies  which  con- 
stituted a  part  of  the  same  empire,  and  which  recognized 
the  common  law  as  the  source  of  their  Jurisprudence,  it 
must  be  presumed  that  such  common  law  exists — it  has 
been  so  held  in  repeated  instances — and  it  rests  upon  par- 
ties who  assert  a  different  rule  to  show  that  matter  by 
proof  .^  A  similar  presumption  must  prevail  as  to  the  exis- 
tence of  the  common  law  in  those  States  which  have  been 
established  in  territory  acquired  since  the  Revolution ;  when 
such  territory  was  not  at  the  time  of  its  acquisition  occu- 
pied by  an  organized  and  civilized  community  ;  where,  in 
fact,  the  population  of  the  new  State  upon  the  establish- 
ment of  government  was  formed  by  emigration  from  the 
original  States.  As  in  British  colonies,  established  in 
uncultivated  regions  by  emigration  from  the  parent  coun- 
try, the  subjects  are  considered  as  carrying  with  them  the 


1  JariTian  on  Wills,  1 ;  2  Grccnl.  ou  Ev.,  6cc.  671. 

*  1  Kent's  Coimn.  31:?. 

«  See  Inge  r.  Alurphy,  10  Ala.  605. 


368  presujVIPtive  E\^DENCE.  [rule  80. 

common  law,  so  far  as  it  is  applicable  to  their  new  position, 
so,  when  American  citizens  emigrate  into  territory  which  is 
unoccupied  by  civilized  man,  and  commence  the  formation  of 
a  new  government,  they  are  equally  considered  as  carrying 
■with  them  so  much  of  the  common  law,  in  its  modified  and 
improved  condition  under  the  influence  of  modern  civiliza- 
tion and  republican  principles,  as  is  suited  to  their  new  con- 
dition and  wants.  But  no  such  presumption  can  apply  to 
States  in  which  a  government  already  existed  at  the  time 
of  their  accession  to  the  country  as  Florida,  Louisiana,  and 
Texas.  They  had  already  laws  of  their  own,  which 
remained  in  force  until  by  the  proper  authority  they  were 
abrogated  and  new  laws  were  promulgated.  With  them 
there  is  no  more  presumption  of  the  existence  of  the  com- 
mon law  than  of  any  other  law.  They  were  independent 
of  the  English  law  in  their  origin,  and  hence  no  presump- 
tion of  the  common  law  of  England  can  be  indulged.  In 
countries  conquered  and  ceded  to  England,  the  common 
law  has  no  authority  without  positive  enactment,  and  for 
the  same  reason  that  they  were  not  part  of  the  mother  coun- 
try, but  distinct  dominions.^  As  Texas  was  an  independ- 
ent country  at  the  time  of  its  accession  to  the  United 
States,  having  laws  of  its  own,  not  being  carved  out  of  the 
ancient  colonial  provinces  of  England,  like  the  original 
thirteen  States,  or  formed  by  emigration  into  an  unculti- 
vated country  from  those  States,  but  from  a  Mexican 
province  by  a  successful  revolution  against  the  Republic  of 
Mexico  —  no  presumption  can  arise  of  the  existence  therein 
of  the  common  law,  which  is  the  basis  of  the  Jurisprudenco 
of  the  other  States." 

In  a  New  York  case,^  Kent,  C.  J.,  said:  "  The  court  can 
not  know  ex  officio  what  are  the  rights  and  disabilities  of 
infants,  or  when  infancy  ceases  by  the  provincial  law  of 
Jamaica.     These  questions  depend  much  ujoon  municipal 

1  1  Black.  107;  1  Story  on  the  Cons.  150. 

a  Thompson  v.  Ketcham,  8  Johns.  VM  (1811). 


RULE  81.]      PRESUilPTIOXS  COXCERXIXG  FOHEIGN  LAWS.      3tj9 

regulation;   and  what  the  foreign  law  irf  must  be  proved  as 
a  matter  of  fact."  ^ 

B. 

I.  A  person  acting  in  the  Creek  Nation  of  Indians  as  an  administrator 
claims  in  Arkansas  to  havo  sold  certain  proi)erty  under  sucli  power.  The 
court  will  not  presume  that  the  common  law  in  this  respect  is  the  law  of 
the  Creeks.* 

**  If  this  had  been  an  administration  in  a  sister  State,"  it 
was  said  in  case  I.,  "  in  the  absence  of  the  statute  laws  of 
the  State,  we  should  hold,  as  we  repeatedly  have,  that  the 
common  law  was  in  force  under  which  the  powers  and  duties 
of  the  administrator  would  be  determined.  *  *  *  j^u^ 
we  are  not  prepared  to  say  that  we  will  presume  the  exi.s- 
tence  of  the  common  law  in  a  semi-civilized  nation  of  In- 
dians, acting  under  usaijes  and  customs  of  their  own." 

RULE  81.  — When  one  State  or  country  adopts  a  stat- 
ute of  another  State  or  country  which  has  received  a 
judicial  construction  in  that  country,  such  construc- 
tion is  presumed  to  have  been  adopted  with  the  stat- 
ute. 

Illustrations . 

I.  An  Enfrlish  statute  ^  relating  to  gaming  had  been  construed  by  the 
English  courts  to  include  horse  racing  under  the  words  "  other  games." 
The  State  of  Illinois  subsequently  adopts  this  statute.  The  presump- 
tion in  the  Illinois  courts  is  that  this  construction  was  adopted  with  the 
statute. 


1  In  Mostyn  r.  Fabrigas,  Cowp.  174  (1774),  Lord  MansflelJ  said:  "But  it  is 
objected  thai  supposing  the  defendant  to  liave  acted  as  the  Spanish  Governor  was 
empowered  to  do  before,  hnw  is  it  to  be  known  here  that  bj'  tlie  laws  and  constitu- 
tion of  Spain,  he  was  authorized  so  to  act.  The  way  of  knowing  foreign  laws  is  by 
admitting  them  to  be  proved  as  facts,  and  the  court  must  assist  the  jury  in  ascer- 
taining what  the  law  is.  For  instance,  if  there  is  a  French  setUement,  the  construc- 
tion of  which  depends  upon  tlie  custom  of  Paris,  witnesses  must  be  received  to 
explain  what  tlic  customs  ij  us  evidence  is  received  of  customs  in  respect  to  trade. 
So  in  tlie  supreme  resort  before  the  king  in  council,  the  I'rivy  Council  determines 
all  cases  that  ari>e  in  the  plantations,  in  Gibraltar,  or  Morocco,  or  Jersey  or  Guern- 
eey,  and  they  inform  themselves  by  having  the  law  stated  to  them."  And  see  Male 
V.  Roberts,  r>Esp.  1(53  (1802). 

2  Du  Val  c.  Marshall,  30  .Vrk.  230  (1S75). 
8  9  Anne,  c.  14. 

*  Tatman  v.  Strader,  23  111.  493  (ISCO) ;  see,  Shorpshire  r.  Glasscock,  4  Mo.  536. 

24 


370  PRESU^IPTIYE    EVIDENCE.  [rULE    82. 

RULE  S3.  —  The  term  "law"  within  Rule  78  is  re- 
stricted to  the  common  law  of  the  forum,  or  the  com- 
mercial law  (A)  and  does  not  include  the  statute  law 
of  the  forum ^  (B). 

Illustrations. 


I.  An  action  is  brought  in  Massachusetts  to  recover  a  payment  of 
freight  made  in  advance  to  an  owner  of  a  ship  for  freight.  The  charter 
party  was  made  in  Scotland.  The  common  law  of  England  is  that  a  pay- 
ment of  freight  in  advance  can  not  be  recovered  back.  The  common  law 
of  Massachusetts  is  different.  The  presumption  is  that  the  law  of  Scot- 
laud  is  like  that  of  Massachusetts.'^ 

*'  The  charter  party  in  the  case  before  us,"  it  was  said  in 
easel.,  "  was  made  in  Scotland,  and  is  therefore  a  contract 
to  be  governed  by  the  law  of  Scotland,  if  that  law  differs 
from  the  law  of  Massachusetts,  and  not  of  the  law  of  this 


1  Donegan  v.  Wood,  49  Ala.  242  (1873) ;  Kinney  v.  Ilosea,  3  Harr.  (Del.)  77  (1840) ; 
Baughan  v.  Graham,  1  How.  (Miss.)  220  (1835);  Stale  v.  Twitty,  2  Hawks,  441  (1823); 
Mason  v.  Wash,  Breese,  16  (1822) ;  Johnson  v.  Chambers,  12  lud.  102  (1859) ;  Davis  v. 
Eogers,  14  Ind.  424  (1S60) ;  Wakeman  v.  Marquand,  5  Mart.  (N.  s.)  270  (182C) ;  Walker 
V.  Maxwell,  1  Mass.  103  (1S04) ;  Lejjg  v.  Legg,  8  JIass.  99  (1811) ;  Harper  v.  Hampton,  1 
Harr.  &  J.  623  (1S05) ;  Gordon  v.  Ward,  16  Mich.  363  (1868) ;  Kermott  v.  Ayer,  11  Mich. 
181  (1863) ;  Crane  v.  Hardy,  1  Mich.  56  (1848) ;  Leak  v.  Elliott,  4  Mo.  450  (1836) ;  Hite  v. 
Lenhert,  7  Mo.  22  (1811) ;  AVilson  v.  Cockrill,  8  Mo.  7  (1843) ;  Seymour  v.  Sturgess,  26 
N.  Y.  135  (1862)  ;  McCulloch  v.  Norwood,  58  N.  Y.  567  (1S74) ;  Chapin  v.  Dobson,  78  N. 
Y.  74  (1879) ;  Locke  v.  Huling,  24  Tex.  311  (1859) ;  Territt  v.  Woodruff,  19  Vt.  182  (1847) ; 
Lincoln  v.  Battclle,  6  Wend.  476  (1831) ;  Chanouie  v.  Fowler,  3  Wend.  173  (1829) ; 
Holmes  r.  Brighton,  10  Wend.  75  (1833) ;  Hull  v.  Augustine,  23  Wis.  883  (186S) ;  AValsh 
V.  Dart,  12  Wis.  635  (1860) ;  Kenyon  v.  Smith,  24  Ind.  11  (1865) ;  People  v.  Lambert,  5 
Mich.  356  (1858);  Ramsey  v.  McCauley,  2  Tex.  190  (1849) ;  Spawn  v.  Crummerford,  20 
Tex.  216  (1857).  Some  cases  seem  to  hold  a  different  doctrine.  Hickman  v.  Alpaugh, 
21  Cal,  223  (1862) ;  Hill  v.  Grigsby,  32  Cal.  55  (1867) ;  Martin  v.  Hazard  Powder  Co.,  2 
Col.  597  (1875) ;  Smith  v.  Smith,  19  Gratt.  545  (1869) ;  Allen  v.  Watson,  2  Hill  (S.  C.),319 
(1834) ;  Bean  v.  Briggs,  4  Iowa,  464  (1857) ;  Crafts  v.  Clark,  38  Iowa,  237  (1874) ;  Harris 
V.  AUnutt,  12  La  465  (1838) ;  Atkinson  v.  Atkinson,  15  La,  Ann.  491  (ISGO) ;  Conally  v. 
Eiley,  25  Md.  402  (1S66) ;  Harper  v.  Harper,  1 II.  &  McII.  687;  Gardner  v.  Lewis,  7  Gill, 
377;  Campbell  v.  Miller,  3  Mart.  (N.  S.)  149  (1821) ;  Smoot  v.  Baldwin,  1  Mart.  (N.  6.) 
52S  (1S23) ;  Brimhall  v.  Van  Campen,  8  Minn.  13  (1862) ;  Crozier  v.  Hodge.  3  La.  358 
(1832) ;  Monroe  v.  Douglass,  5  N.  Y.  452  (1851) ;  Messner  v.  Lewis,  20  Tex.  219  (1857) ; 
Green  v.  llugly,  23  Tex.  539  (1859) ;  Rape  v.  Heaton,  9  Wis.  338  (1859) ;  Sadler  t>.  Andcr- 
Bon,  17  Tex.  245  (18.56) ;  Cannon  v.  North  Western  Ins.  Co.,  29  Hun,  470  (1883) ;  Rogesr 
*.  Hatch,  8  Nev.  35  (1872) ;  Marsters  v.  Lash,  61  Cal.  623  (1882).  As  to  interest  on 
money.  Cooper  v.  Reaney,  4  Minn.  528  (1860);  Desnoyer  v.  McDonald,  4  Minn.  515 
(1800).  The  matter  is  regulated  by  statute  in  Kentucky.  Thomas  v.  Beckman,  1 B. 
Mon.  34  (1840). 

«  Chase  v.  Alliance  Ins.  Co.  9  Allen,  311  cl864). 


EULE  82.]      rRESUMPTIOXS  CONCERNING  FOREIGN  LAWS.      oTl 

commonwealth.  "We  do  not  find  that  the  precise  point  has 
ever  been  expressly  adjudicated  by  any  Scottish  court,  nor 
has  any  case  been  cited  which  is  a  direct  authority  in  point. 
Tlie  defendants  have  relied  in  argument  upon  a  series  of 
English  decisions  which  are  more  or  less  at  variance  with  the 
decisions  of  this  court  upon  the  subject,  and  upon  citations 
of  Scotch  authorities  to  show  that  the  mercantile  law  of 
Scotland  is  generally  the  same  with  that  of  England,  But 
while  wo  can  have  no  doubt  that  the  decisions  of  English 
courts  would  be  regarded  as  of  the  highest  authority  by  any 
Scotch  tribunal  upon  a  question  of  commercial  law,  we  do 
not  find  that  these  decisions  are  binding"  upon  the  courts 
of  Scotland.  The  question  is  not  one  of  local  jurisprudence 
but  of  the  construction  and  effect  of  a  commercial  contract 
on  which  the  rule  adopted  by  any  local  tribunal  if  it  seems 
erroneous  upon  general  principles,  must  be  confined  to  the 
jurisdiction  within  which  it  is  made.^  The  ge-neral  doctrine 
of  the  English  cases,  although  they  do  not  seem  to  be 
wholly  constituent  or  founded  on  any  clear  and  uniform 
principle,  appears  to  be  that  a  payment  of  freight  in  advance 
can  not  be  recovered  back,  unless  it  is  made  to  appear 
affirmatively  that  it  was  intended  by  the  parties  merely  as  a 
loan.  But  as  we  do  not  regard  these  decisions  as  correct  in 
principle,  we  must  treat  them  as  indicating  a  local  pecu- 
liarity of  English  law,  which  is  not  to  be  extended  beyond 
the  jurisdiction  in  which  it  is  shown  to  have  been  adopted. 
It  appears  to  us  inconsistent  not  only  with  sound  principles 
of  construction  in  the  interpretation  of  the  contract  to  which 
it  applies,  but  also  irreconcilable  with  the  general  principles 
relating  to  affreightment  which  have  been  recognized  by  the 
judges  and  approved  text  writers  of  Scotland.'' 

In  /State  v.  Cobb-  it  was  said  :  *'  The  bonds  indorsed  by 
the  State  being  made  payable  in  Boston  where,  as  we  must 
presume,  the  commercial  law  is  unaffected  by  legislation," 

1  Wood  f.  Corl,  4  Mctc.  203;  Cribbs  v.  Adams,  13  Gray,  507. 
2&4  Ala.  157  (1379). 


372  PRESUMPTIVE  EVIDENCE.        [kULE  82. 

etc.  In  an  Illinois  case  the  court  sa}* :  "If  it  had  appeared 
upon  its  face,  or  had  been  shown  by  evidence  that  the 
contract  was  made  in  another  State  or  comntry,  in  the 
absence  of  proof  to  the  contrary  we  must  presume  that 
there  were  laws  in  that  country  regulating  trade,  com- 
merce, and  the  buying  and  selling  of  propert^^,  and  that 
a  sale  may  be  made  upon  credit,  and  notes  given  by 
purchasers,  and  that  they  were  sanctioned  by  the  local 
law."  ^  In  a  number  of  cases  it  has  been  held  that  in  com- 
mercial transactions  the  law  of  another  State  is  presumed 
to  be  the  same  as  the  law  of  the  forum. ^  Thus,  in  every 
State  the  presumption  is  that  in  every  other  State  three 
days  grace  is  allowed  on  bills  of  exchange  and  promissory 
notes. ^  In  DoII/us  v.  Frosch,'^  it  was  held  that  the  law  of 
New  York  as  to  days  of  grace  on  commercial  paper  would 
be  presumed  to  be  the  law  in  France. 

B. 

I.  In  a  New  York  court  a  declaration  of  trust  executed  iu  Michigan 
is  souglit  to  be  enforced.  Sucli  trusts  are  enforceable  in  New  Yorls: 
by  the  provisions  of  a  statute.  There  is  no  presumption  that  such 
statute  is  in  force  in  Michigan.* 

II.  In  New  York  it  is  contended  that  a  certain  contract,  void  for  usury 
in  New  York  is  also  void  in  Vermont  where  it  was  made.  There  is  no 
presumption  that  the  statute  concerning  usury  has  been  enacted  in  Ver- 
mont.s 

III.  In  an  action  brought  iu  New  York,  on  a  contract  made  in  Penn- 
sylvania, the  plea  was  that  it  was  void  because  not  in  writing.  The  pre- 
sumption is  that  no  writing  was  required  in  Pennsylvania,  as  none  was 
necessary  at  common  law.'' 

IV.  A  parol  contract  to  sell  lands  made  in  Illinois  is  sought  to  be 
enforced  iu  Michigan.    It  is  objected  that  to  be  valid  it  should  be  in 


1  Smith  V.  Whitaker,  23  111.  367  (18C0). 

2  Bcmis  V.  McKcnzic,  13  Fla.  5.")3   (1S70) ;  Leavenworth  v.  Brockway,  2  Hill,  201 
(1842) ;  Cribbs  v.  Adams,  13  Gray,  597  (1859), 

3  Wood  V.  Carl,  4  Mete.  203  (1842). 
<  1  Denio,  307  (1815). 

6  Throop  V.  Uatcli,  3  Abb.  Pr.  27  (185C) ;  Forbes  v.  Scannell,  13  Cal.  278  (1859). 
•  Pomeroy  t».  Ainsworth,  22  Barb.   113  (ISoG) ;  Oily  Savings  Bank  v.  Bidwcll,  29 
Barb.  .325  (1859) ;  MoCraney  v.  Alden,  40  Barb.  274  (1800). 

I  White  V.  Knapp,  47  Barb.  549  (1867) ;  Uougutaliujj  v.  Ball,  19  Mo.  84  (1853). 


EDLE  82.]   rKESUMrXIONS  CONCEnXIXG  FOKEIGN  LAWS.   373 

writing.    The  presumption  is  that  the  laws  of  Illinois  do  not  require 
this.' 

V.  A.  sues  B.  in  Mis«!0uri  for  slander  in  saying  that  he  had  to  leave 
Indiana  for  "burning  a  barn."  There  is  no  presumption  that  "  burning 
a  barn  "  was  a  crime  in  Indiana,  and  this  not  being  proved  the  action  will 
not  lie.' 

VI.  An  action  is  brought  in  New  York  for  damages  ("given  by  statute 
in  that  State)  resulting  from  a  death  caused  by  negligence  of  a  railroad 
on  the  Isthmus  of  Panama  in  the  Republic  of  New  Grenada.  The  action 
will  not  lie,  for  there  is  no  presumption  that  such  an  amendment  to  the 
common  law  is  in  force  in  New  Grenada.^ 

VII.  An  action  is  brought  in  New  York  on  a  note  made  in  Florida. 
The  defense  is  usury.  It  appears  that  t)y  the  laws  of  New  York  a  con- 
tract reserving  more  than  seven  per  cent  is  usurious,  and  the  note  bears 
eight  per  cent.    The  presumption  is  that  it  is  valid  in  Florida.* 

VIII.  A  note  made  payable  in  New  York  was  sued  on  in  Massachu- 
setts. It  was  proved  to  have  been  made  on  Sunday.  There  is  no  pre- 
sumption that  a  statute  like  that  of  Massachusetts  is  in  force  in  New 
York,  and  the  note  is  valid.^ 

In  case  I.  it  was  said:  '<  Do  the  statutes  of  this  State  or 
does  the  common  law  as  it  existed  in  the  absence  of  any 
leo-islation  or  at  the  time  of  the  separation  of  this  country 
from  England,  prevail  in  other  States  of  the  Union  by  pre- 
sumption of  law.  There  is  a  want  of  precision  in  the  lan- 
guage of  some  of  the  cases  which  would  lead  us  to  suppose 
upon  a  cursory  examination  that  our  courts  have  intended 
to  decide  that  in  the  absence  of  any  evidence  of  what  the 
laws  of  other  States  are,  it  will  be  presumed  that  they  are 
the  same  as  the  laws  of  this  State,  without  distinguishing 
whether  the  common  law  or  a  statute  of  the  State  should 
give  the  rule.  It  will  be  conceded  that  our  statutes  have 
no  extra-territorial  force,  and  as  they  can  not  have  as  the 
statutes  of  this  State  any  binding  force  out  of  this  State, 
the  presumption  must  of  necessity  be  that  the  other  States 
of  the  Union  did  at  the  same  time  that  we  acted  upon  the 

1  Ellis  t».  Maxon,  19  Mich.  186  (1869). 

2  r.uiuly  V.  Hart,  46  Mo.  462  (1870). 

s  Whiirord  f.  Panama  R.  Co.,  23  N.  Y.  465  (1861). 
4  Culler  r.  Wriglit.  12  X.  Y.  472  (1S60). 
»  Murphy  r.  Collins,  121  Mass.  6  (1876). 


374:  PRESUMrxivE  EVIDE^•CE.  [kule  82. 

subject  make  the  same  changes  in  the  law  which  we  did,  if 
we  come  to  the  conclusion  that  the  statute  laws  of  all  the 
States  are  presumed  to  be  the  same  as  our  own.  This 
would  be  a  presumption  violent  in  the  extreme  as  a  pre- 
sumption of  fact  and  should  not  be  entertained  except 
upon  the  clearest  authority.  It  is  well  established  that 
the  common  law  is  presumed  to  have  originally  existed 
in  the  states  of  the  Union  except  perhaps  in  those  which 
had  before  becoming  members  of  the  Union  been  subject 
to  another  code  and  system  of  laws,  and  it  is  a  well 
established  presumption  of  law  that  things  once  proved 
to  have  existed  in  a  particular  condition,  continue  in  the 
condition  until  the  contrary  is  established  by  evidence 
either  direct  or  presumptive.  Each  State  having  the  sole 
power  to  legislate  for  itself  and  change  the  common  law 
therein  by  act  of  the  Legislature  it  would  seem  to  follow 
that  until  there  were  some  proof  that  the  common  law  had 
by  legislation  ceased  to  be  the  law  of  the  land  it  would  be 
presumed  to  be  in  force.  I  see  no  foundation  for  the  pre- 
sumption that  because  one  State  has  seen  fit  to  dispense 
with  the  rules  of  the  common  law  and  provide  others  for 
the  government  of  its  citizens  upon  a  given  subject,  the 
Legislature  of  every  other  State  has  been  like  minded.  I 
speak  now  of  those  matters  which  are  known  to,  and  in  the 
absence  of  an  overruling  statute  are  governed  by,  the  com- 
mon law.  There  are  matters  in  relation  to  which  the 
common  law  does  not  speak,  which  are  regulated  solely  by 
statute,  and  in  regard  to  some  of  these  matters  it  is  not 
impossible  that  our  statute  may  be  presumed  to  be  the  same 
as  those  of  the  other  States  or  rather  the  laws  of  other 
States,  in  the  absence  of  evidence,  presumed  to  be  the  same 
as  those  of  our  own." 

And  in  a  case  very  like  case  I.,  but  decided  one  year 
later,^  it  was  said:  *'  The  true  rule  assumes  to  be  founded 
on  a  probabilitv  that  it  will  lead  to  the  actual  truth,  and  is 

1  Wright  V.  Delaflcia,  23  Barb.  403  (1357). 


RULE  82.]      PRESUMPTIONS  COXCi'IKNIXG  FOREIGN'  LAWS.      375 

not  a  technical  rulo  forced  upon  courts  against  their  con- 
viction of  what  is  right.  Until  the  contrary  is  proved  it 
is  more  likely  to  be  true  than  false  that  the  laws  of  another 
State  arc  the  same  as  ours,  as  to  contracts  relating  to  per- 
sonal estate  and  as  to  commercial  matters  particularly  ;  and 
that  when  the  common  law  is  known  to  prevail,  it  is  construed 
there  as  it  is  with  us,  whether  relating  to  lands  or  personal 
property.  So,  also,  interest  is  now  considered  as  much  an 
incident  to  a  loan  of  money  as  rent  is  to  the  letting  of  a 
house  or  lands.  It  is,  therefore,  an  assumption  mo.-t  com- 
patible with  truth  that  interest  at  some  rate  is  allowed  in 
every  State.  Although  the  rate  of  interest  therefore  is 
fixed  by  statute,  yet  as  some  rate  is  universal,  our  courts 
must  allow  some  rate  ;  and  if  the  parties  furnish  no  better 
guide  to  the  truth,  the  court  assumes  ours  to  be  the  legal 
interest  in  computing  the  amount  to  be  recovered.  But 
when  we  introduce  what  we  know  to  be  a  new  law  (as  is 
our  statute;  respecting  trusts,  it  would  be  a  perversion 
of  reason  to  pretend  to  infer  that  as  soon  as  we  placed  the 
new  law  on  our  statute  book  every  other  State  in  the  Union 
would  adopt  the  same  law.  Slavery  was  abolished  here  in 
1826.  It  would  be  a  bold  proposition  that  we  should  infer 
that  it  was  thenceforth  abolished  in  all  the  other  States  in 
which  it  was  proved  to  have  previously  existed.  Within 
the  present  century  we  have  adopted  laws  giving  priority 
to  conveyances  of  lands  according  to  the  order  of  time  in 
which  they  are  recorded;  creating  liens  in  favor  of  me- 
chanics; at  one  time  making  banking  a  monopoly,  after- 
wards opening  it  to  all  under  certain  restrictions.  Many 
of  the  States  have  by  express  statute  adopted  similar  laws. 
He  would  be  a  very  unwise  man  who,  inferring  that  our 
sister  States  had  conformed  their  laws  to  ours,  should 
make  his  investments  accordingly.  And  it  would  be  no 
less  unwise  and  unjust  in  a  court  to  make  the  same  infer- 
ence and  on  it  to  determine  the  rights  of  parties.  Any 
conclusion  which  shocks  reason  and  common  sense  can  not 
be  founded  on  correct  rules  of  evidence." 


376  PRESUMPTIVE  EVIDENCE.  [llULE   82. 

In  case  III.  it  was  said  :  "Assuming  that  the  contract  is 
void  in  consequence  of  not  being  in  writing,  it  is  so  by  rea- 
son of  the  statute  of  frauds  of  this  State.  By  the  common 
law  it  was  a  valid  contract,  and  there  is  no  evidence  that  by 
any  statute  of  the  State  of  Pennsylvania  such  a  contract  was 
required  to  bo  evidenced  by  writing.  We  are  not  at  lib- 
erty to  indulge  in  any  presumption  as  to  what  the  legisla- 
tion of  another  State  or  country  has  been  or  what  statutes  it 
may  have  enacted.  To  presume  that  the  statute  law  of 
another  State  is  the  same  as  that  of  our  own,  would  be,  as 
it  seems  to  me,  the  height  of  absurdity.  In  a  given  case 
the  statutes  may  be  and  they  may  not  be  similar  to  ours. 
If  they  are  and  a  party  wishes  to  avail  himself  of  them  in 
the  courts  of  this  State,  it  is  a  very  easy  thing  to  prove  it. 
That  we  have  a  particular  statute  containing  particular  pro- 
visions is  not  any  evidence,  not  even  prima  facie^  that 
another  State  has  a  statute  with  like  provisions.  Were  it 
otherwise  it  would  follow  that  we  are  bound  to  presume 
that  every  one  of  our  sister  States  has  enacted  all  the  gen- 
eral laws  contained  in  our  massive  tomes  of  session  laws; 
and  by  the  same  rule  the  courts  of  each  State  would  be 
bound  to  presume  the  same  thing  in  regard  to  the  statutes 
of  each  of  the  other  States.  The  rule,  as  I  have  always 
understood  it  to  exist  in  this  State,  is  that  where  there  is  no 
evidence  to  the  contrary  it  will  be  presumed  that  the  com- 
mon law  is  in  force  in  each  of  the  other  States,  except  pos- 
sibly the  State  of  Louisiana,  and  that  no  such  presumption 
will  prevail  in  regard  to  statute  or  written  law.  If  the  com- 
mon law  has  been  abrogated,  changed,  or  modified  by  a 
statute  of  another  State  it  must  be  proved." 

In  case  IV.  it  was  said:  "A  parol  contract  to  sell  lands 
was  good  at  common  law.  It  is  only  made  void  by  statute. 
If  we  should  make  any  presumption  in  the  absence  of  evi- 
dence, as  to  the  provisions  of  any  foreign  laws,  it  would  be 
that  they  conform  in  substance  to  the  general  principles  of 
the  common  law.  How  universally  we  could  make  such  a 
presumption  it  is  not  necessary  to  consider.     We  certainly 


RULE  82.]      PRESUMPTIONS  COXCERNIXO  rOREIGN  LAWS.      .077 

can  not  prcsinnc  that  the  Legislature  of  another  State  has 
adopted  all  of  our  statutes,  and  therefore,  we  mutt  have 
proof  before  we  can  know  that  they  have  passed  any  stat- 
ute." 

In  case  V.  it  was  said:  '*  It  may  be  said  that  the  courts 
of  each  State  should  assume  all  acts  to  be  criminal  in  other 
States  that  are  made  so  by  the  statutes  of  their  own  State, 
but  this  would  be  an  assumption  not  only  contrary  to  the 
traditions  and  practice  of  courts,  but  contrary  also  to  the 
known  fact ;  and  if  it  be  also  said  that  burning  a  barn  is  a 
crime  of  such  moral  turpitude  that  we  should  assume  it  to 
bo  a  punishable  offense,  that  must  depend  upon  circum- 
stances. If  the  charge  involve  such  a  burning  as  to  make 
it  by  our  statute  arson  in  the  first  or  second  degree,  the 
remark  would  apply,  for  that  would  be  a  crime  at  common 
law,  and  no  foreign  statute  need  be  alleged  or  proved.  But 
many  of  our  Western  barns  are  in  the  open  field  and  of 
trilling  value,  some  being  built  of  poles  aud  straw  ;  and 
their  destruction  would  involve  less  of  the  moral  elements 
of  crime  than  some  mere  trespasses." 

In  case  VI.  it  was  said:  *'The  courts  do  not  in  irencral 
take  notice  of  the  laws  of  a  foreign  country,  except  so  far 
as  they  are  made  to  appear  by  proof.  In  the  absence,  how- 
ever, of  positive  evidence  as  to  the  law  of  another  country, 
our  laws  indulge  in  certain  presumptions.  Prima  facie,  a 
man  is  entitled  to  personal  freedom  and  the  absence  of 
bodily  restraint,  and  to  be  exempt  from  physical  violence 
to  his  person  everywhere.  Hence,  if  one  bring  a  civil 
action  for  false  imprisonment,  or  for  an  assault  and  battery 
committed  abroad,  he  need  not  in  the  first  instance,  offer 
any  proof  that  such  acts  are  unlawful  and  entitle  the 
injured  party  to  a  recompense  in  damages  in  the  place  where 
they  were  inflicted;  for  the  courts  will  not  presume  the 
existence  of  a  state  of  law  in  any  country  by  which  com- 
pensation is  not  provided  for  such  injuries.  And  where  the 
condition  of  the  law  of  another  State  becomes  material,  aud 


378  PRESUMPTIVE    EVIDENCE.  [rULE    82. 

no  evidence  has  been  offered  concerning  it,  our  courts  will 
presume  that  the  general  principles  of  the  common  law 
which  we  always  consider  to  be  consonant  to  reason  and 
natural  justice  prevail   there.     But  no  such   presumption 
prevails  respecting  the  positive  statute  law  of  the  State. 
There  is   generally   no  probability  in  point  of  fact,  and 
there  is  never  any  presumption  of  law  that  other  States  or 
countries    have  established    precisely  or  substantially  the 
same  arbitrary  rules  which  the  domestic  Legislature  has 
seen  fit  to  enact.     In  applying  these  remarks  to  the  pres- 
ent case,  we  are  brought  to  the  conclusion  that  the  statutes 
under  which  this  action  is  instituted  do  not,  so  far  as  we 
know  or  can  assume,  form  any  portion  of  the  law  of  New 
Granada  where  the  facts  constituting  the  supposed  cause  of 
action  occurred.     These  statutes  have  introduced  a  princi- 
ple wholly  unknown  to  the  common  law,  namely,  that  the 
value  of  a  man's  life  to  his  wife  or  next  of  kin,  constitutes 
with  a  certain  limitation  as  to  amount,  a  part  of  his  estate, 
which  he  leaves  behind  him  to  be  administered  by  his  per- 
sonal representatives.     The  contrary  doctrine,  to  wit,  that 
a  cause  of  action  existing  for  such  a  wrong  in  favor  of  the 
party  injured  dies  with  him,  and  forms  no  part  of  the  suc- 
cession to  which  his  wife  and  kindred  are  entitled,  was  so 
well  established  as  to  form  one  of  the  standing  maxims  of 
the  law." 

In  case  VII.  it  was  said:  "As  the  rate  of  interest 
inserted  in  the  note  exceeds  the  rate  allowed  in  this  State, 
the  defendant's  counsel  insists  that  the  note  is  prima  facie 
usurious.  He  relies  upon  the  ordinary  presumption  that  the 
laws  of  a  foreign  State,  nothing  being  shown  to  the  con- 
trary, corresponds  with  our  own,  and  claims  that  it  was 
incumbent  upon  the  plaintiff  to  repel  this  presumption  by 
proof  that  the  law  of  Florida  allowed  interest  at  the  rate 
mentioned  in  the  note.  I  doubt  whether  the  presumption 
relied  upon  extends  to  a  case  of  this  kind.  Our  statute  of 
usury  is   highly   penal.     It   forfeits  the   entire  debt.     At 


\ 


RULE  83.]      PKESUMPTIONS  CONCERNING  FOREIGN  LAWS.      879 

common  law  the  contract  would  be  perfectly  good.  "We 
are  not,  I  think,  called  upon  to  presume  that  forei<;u  States 
have  adopted  all  our  penal  legislation." 

"  The  contract,"  it  was  said  in  case  VIII.,  *'  was  not  void 
by  the  conmion  law,  and  there  is  no  presumption  that  the 
law  of  another  State  corresponds  with  a  statute  of  this  com- 
mon wealth." 

*'  In  the  absence  of  any  proof  to  the  contrary,  we  must 
presume  that  [the  English  common  law]  without  any  modi- 
fications other  than  such  as  was  "  produced  by  our  Revolu- 
tion and  by  our  political  institutions  in  general,  still  prevail 
in  (another)  State.  Such  modifications  as  may  have  been 
made  by  her  legislative  acts,  can  not  be  judicially  known  to 
us  and  must  be  shown  by  proof."  ^ 

RULE  83.  —  And  a  rule  of  the  common  law  to  ^liicli 
exceptions  have  heen  made  by  the  courts  will  not  bo 
presumed  to  be  in  force  intact  in  the  foreign  State  or 
country. 

Illustration. 

I.  An  action  was  brought  in  Maine  by  A.  against  B.  for  a  quantity  of 
salt  placed  in  a  store  in  New  Brunswick.  It  appeared  that  the  salt  had 
been  seized  for  rent.  The  court  will  not  presume  that  all  property  in 
New  Brunswick,  placed  on  the  laud  of  another  is  liable  to  be  taken  for 
rent  in  arrear.' 

In  case  I.  it  was  said  that  the  courts  of  this  State  could 
not  presume  that  a  rule  of  the  common  law  to  which  so 
many  exceptions  had  been  made  in  favor  of  trade  and  com- 
merce, was  in  force  in  its  original  vigor  in  another  country. 
"  There  are  many  and  important  exceptions  to  the  general 
law  of  distress,  made  in  favor  of  trade  and  commerce.  In 
a  case  in  which  the  whole  doctrine  was  much  examined,  it 
was  decided  that  goods  of  the  principal  in  the  hands  of  his 


1  Ne-wton  v.  Cocke,  10   Ark.  109  (1340). 

'  Owen  V.  Bogle,  15  Me.  117 ;  32  Am.  Dec.  143  (1S38) ;  Smith  v.  GoalU,  i  Moore  P.  C 

i (1842). 


380  PREsmiPTivE  EVIDENCE.  [rule  83. 

factor  were  not  liable  to  be  distrained  for  the  factor's  rent.^ 
For  like  reasons  it  has  been  held  that  property  deposited 
for  a  broker  in  a  warehouse  upon  a  wharf  for  safe  cus- 
tody to  wait  an  opportunity  to  sell,  was  not  liable  to  be 
distrained  for  rent  due  from  the  wharfinger.^  And  the  same 
rule  of  exemption  has  been  decided  to  apply  to  goods  in  a 
common  warehouse.^  This  is  not  the  proper  occasion  to 
examine  into  the  extent  of  the  exception  in  favor  of  trade 
and  commerce,  further  than  to  show  that  it  may  be  impor- 
tant to  a  just  decision  of  the  rights  of  these  parties  that  the 
law  should  be  proved  by  those  who  are  competent  to  speak 
with  a  full  knowledore  of  it." 


1  Oilman  v.  Eaton,  3  Brod.  &  B.  75. 

2  Thompson  v.  Mashiter,  1  Bing.  283. 
»  Mathias  v.  Mesnard,  2  C.  &  P.  353. 


CHAPTEE    XYII. 


THE   PRESUMPTIONS  FRO:\r  THE  ALTERATION  OF   IN- 
STRUMENTS. 

RTJLiE  84. — Alterations,  erasures  and  interlineations 
appearing  on  the  face  of  Avritingrs,  whether  under  seal 
or  not,  are  presumed  to  have  been  made  before  their 
execution  or  completion.^ 

Illustrations. 

I.  A  deed  is  produced  by  the  grantee.  There  is  an  erasure  in  the 
description  clause  and  another  in  the  covenants.  The  erasures  are  pre- 
sumed to  have  been  made  by  the  parties  or  the  scrivener  before  the  deed 
was  executed  and  delivered. ^ 

II.  A  will  is  produced  for  probate.  There  is  an  alteration  in  the  name 
of  one  of  the  legatees.  It  is  presumed  that  this  was  made  before  it  was 
signed.* 

III.  B.  sues  C.  on  a  promissory  note  made  by  C.  There  is  an  altera- 
tion and  erasure  in  the  amount  payable.  These  are  presumed  to  have 
been  made  before  it  was  siuiued.' 


1  Cumberland  Bank  v.  Ilall,  6  N.  J.  L.  215  (18S2) ;  Commissioners  r.  Hanion,  1  N.  & 
McC.  5r>4  (1810);  Rankin  v.  Blackwell,  2  Johns.  Cas.  193  (1801);  Runnion  v.  Crane.  4 
Blackf.  466  (1S3S) ;  Conunercial  Bank  v.  Luni,  7  How.  (Miss.)  414  (1843)  ;  Uced  v.  Kemp, 
16  111.  443  (185.^) ;  Joudcn  v.  Boyce, :«  Mich.  302  (1S7G) ;  Stevens  v.  Martin,  18  Pa.  St. 
101  (1851) ;  Little  v.  Ilerndon,  10  AVall.  31  (186'.)) ;  Malarin  r.  United  States,  1  Id.  283 
(1863);  Smith  v.  United  States,  2  Id.  232  (18C1) ;  Ramsey  v.  McCue,  21  Gratt.  349 
(1871);  Matthews  v.  Coalter,  9  Mo.  705  (1846)  ;  McCormick  v.  Fitzraorris,  39 /</.  21 
(186G) ;  Acker  v.  Ledyard,  8  Barb.  614  (ISoO)  ;  Gooch  v.  Bryant,  13  Me  3G5  (1S3G)  ;  Crab- 
Iree  v.  Clark,  20  Me.  337  (1841)  ;  Clark  v.  Rogers,  2  Id.  147  (1832) ;  Wickes  v.  Caulk,5 
II.  &  J.  41  (1S20)  ;  Miliken  r.  Martin,  66  111.  13  (1S72) ;  Putnam  v.  Clark,  27  N.  J.  (Eq.) 
412  (1878);  Wikoff's  Appeal,  15  Pa.  St.  218  (1850);  Ely  r.  Ely,  6  Gray,  430  (1856), 
In  Louisiana  erasures  and  interlineations  are  presumed  to  be  false  or  forged, 
and  must  be  accounted  for  by  the  party  setting  up  the  instrument.  McMicken 
V.  Bcauchanip,  2  La.  200  (1*51) ;  Pipes  r.  Ilardesty,  9  La.  Ann.  lr,1  (1854).  An  impos- 
eible  dale  raises  a  presumption  of  ante  or  post  dating  —  not  of  alteration.  Davis  v. 
Loftin,  6  Tex.  400  (1851). 

*  Cases  cited  in  last  note. 

»  Id.;  Graham  v.  O'Fullon,  4  Mo.  607  (1537). 

*  Id. 

(381) 


382  PKESUMPTR-E   EVIDE^'CE.  [RULE    84. 

IV.  Oil  the  face  of  au  assessment  an  erasure  appears.  The  presump- 
tion is  that  this  was  made  before  it  was  signed. i 

Y.  There  is  an  alteration  in  the  minute  book  of  a  corporation.  The 
presumption  is  that  it  was  made  before  tlie  book  was  signed.^ 

VI.  There  is  an  alteration  in  the  return  made  by  an  officer,  it  appear- 
ing to  have  been  first  written  that  a  notice  had  been  posted  in  two  public 
places,  the  word  "  two"  being  altered  to  "the"  in  the  same  hand  and 
ink.  The  presumption  is  that  this  alteration  was  made  before  the  sign- 
ing of  the  return. 2 

VII.  A  blank  in  a  note  was  found  to  have  existed  at  its  delivery  and  to 
have  been  subsequently  filled.  The  presumption  is  that  it  was  filled  by  a 
person  having  the  legal  custody  of  it.* 

VIII.  An  action  is  brought  on  a  contract  to  indemnify  A.  on  certain 
notes  made  on  March  IGth.  The  contract  is  also  dated  March  ICth,  but 
when  produced  it  is  seen  that  the  figures  "16  "  describing  the  notes  have 
been  written  over  the  figures  "  15,"  aud  in  the  date  of  the  instrument 
the  figures  "  16  "  have  been  written  over  the  figures  "  17."  The  presump- 
tion  is  that  these  alterations  were  made  at  the  time  of  its  execution  and 
the  contract  is  admissible. 

In  the  early  history  of  the  common  law  the  judges  exam- 
ined the  question  themselves,  and  if  the  deed  or  other 
instrument  appeared  to  be  interlined  they  refused  to  admit 
it.  Subsequently  this  practice  was  altered,  and  the  ques- 
tion whether  the  alteration  was  made  before  or  after  the 
delivery  of  the  deed  was  left  to  the  jury.  And  finally  the 
presumption  of  law  was  raised  that  the  alteration  had  been 
made  before  the  delivery,  on  the  ground  that  any  other 
view  would  be  a  presumption  in  favor  of  fraud  and  for- 
gery.^ In  the  United  States  the  rule,  except  in  one  State, 
seems  to  be  well  established  that  the  presumption  will  be 
in  favor  of  the  validity  of  the  instrument.     In  a  Georgia 


1  Xorth  River  Meadow  Co.  v.  Shrewsbury  Church,  22  N.  J.  L.  427  (1850). 

s  Stevens  Hospital  v.  Dyas,  15  Ir.  Eq.  (N.  S.)  405  (1803). 

8  Boothby  V.  Stanley,  34  Me.  515  (1S52).  "Fraufl,"  said  the  court,  "cannot  be 
presumed  unless  the  ordinary  rules  of  presumption  of  honesty  and  innocence  be 
disregarded.  The  alteration  of  any  legal  instrument  in  the  absence  of  proof  or  sat- 
isfactory explanation  to  the  contrary,  should  be  presumed  to  have  been  made  sim- 
ultaneously with  the  instrument  or  before  its  execution." 

*  Ingllsh  V.  Breueraan,  9  Ark.  122;  47  Am.  Dec.  735  (1848). 

6  Beaman  v.  Russell,  20  Vt.  205;  40  Am.  Dec.  775  (1848). 

«  Tatum  V.  Catamore,  16  Q.  B.  745  (1851). 


EULE    84.]  ALTERATION   OF   IXSTRUilENTS.  383 

case  it  was  said:  '<  The  rule  may  now  be  thus  stated:  An 
alteration  of  a  written  instrument,  if  nothing  appears  to 
the  contrary,  shouhl  be  presumed  to  have  been  made  at  the 
time  of  its  execution.  But  generally  the  whole  inquiry, 
whether  there  has  been  an  alteration,  and  if  so  whether  in 
fraud  of  the  defending  party  or  otherwise,  to  l)e  determined 
by  the  appearance  of  the  instrument  itself  or  from  that 
and  other  evidence  in  the  case  is  for  the  jury.^ 

In  case  VIII.  it  was  said:  "Amidst  the  conflict  of  author- 
ities in  this  country,  and  with  the  little  aid  that  can  be 
derived  from  the  modern  English  cases,  I  should  bo  dis- 
posed to  fall  back  upon  the  ancient  common  law  rule  — 
that  an  alteration  of  a  written  instrument,  if  nothing  appear 
to  the  contrary,  should  be  presumed  to  have  been  made  at 
the  time  of  its  execution.  I  think  this  rule  is  demanded 
by  the  actual  condition  of  the  business  transactions  of  this 
country,  and  especially  of  this  State — where  a  great  por- 
tion of  the  contracts  made  are  drawn  by  the  parties  to  them, 
and  without  great  care  in  regard  to  interlineations  and  alter- 
ations. To  establish  an  invariable  rule,  such  as  is  claimed 
in  behalf  of  the  defendant,  that  the  party  producing  the 
paper  should  in  all  cases  be  bound  to  explain  any  alteration 
by  extrinsic  evidence,  would,  I  apprehend,  do  injustice  in 
a  very  great  majority  of  the  instances,  in  which  it  should 
be  applied.  Such  a  rule  might  be  tolerated  —  might  per- 
haps be  beneficially  adopted  —  in  a  highly  commercial 
country,  like  that  of  Great  Britain,  in  regard  to  negotiable 
paper,  which  is  generally  written  by  men  trained  to  clerical 
accuracy,  and  is  upon  stamped  paper,  the  very  cost  of  which 
would  induce  special  care  in  the  drawing  of  it ;  but  I  am 
persuaded  its  application  here  could  not  be  otherwise  than 
injurious.  It  is  not  often  that  an  alteration  can  be  ac- 
counted for  l)y  extraneous  evidence;  and  to  hold  that,  in 
all  cases,  such  evidence  must  be  given,  without  regard  to 
any  suspicious  appearance  of  the  alteration,  would,  I  think, 

1  Printrup  v.  Mitchell,  17  Ga.  5G4  (1855). 


384  PRESLTMPTIVE   EVIDENCE.  [eULE    84. 

in  many   instances  bo  doing  such  manifest  injustice,  as  to 
shock  the  common  sense  of  most  men." 

"  In  this  conflict  of  opinion,"  says  Woodruff,  J.,  after 
an  exhaustive  review  of  all  the  authorities,  "  it  appears  to 
me  the  sensible  rule  and  the  rule  most  in  accordance  with 
the  decisions  of  our  own  State,  is  that  the  instrument,  with 
all  the  circumstances  of  its  history,  its  nature,  the  appear- 
ance of  the  alteration,  the  possible  or  probable  motives  to 
the  alteration,  or  against  it,  and  its  effect  uj^on  the  par- 
ties respectively,  ought  to  be  submitted  to  the  jury;  and 
that  the  court  can  not  presume  from  the  mere  fact  that  an 
alteration  appears  on  the  face  of  the  instrument,  whether 
under  seal  or  otherwise,  it  was  made  after  the  sign- 
ing. Some  alterations  may  be  greatly  to  the  disadvantage 
of  the  holder  or  party  setting  up  the  instrument.  Shall  it 
be  presumed  that  he  made  them  unlawfully  against  his  own 
interest  ?  Others  may  be  indiiferent  as  to  him,  and  favor- 
able to  some  other.  No  presumption  in  such  case  can 
exist  against  him."  ^ 

There  are,  how^ever,  to  be  found  cases  which  conflict 
•with  the  rule  above  laid  down.  In  Jackson  v.  Osborn,'^ 
the  trial  judge  ruled  that  where  there  was  an  erasure  or 
alteration  in  a  deed  the  presumption  of  law  was  that  it  was 
made  before  the  execution  of  the  deed,  and  that  it  was 
incumbent  on  the  party  seeking  to  iuvalidate  the  deed  to 
show  that  the  alteration  had  been  improperly  made.  On 
appeal  this  was  held  to  be  error.  The  court  said:  "Mr. 
Phillips  in  his  treatise  on  Evidence^  says  :  *  If  there  is  any 
blemish  in  the  deed  by  rasure  or  interlineation,  the  deed 
ought  to  be  proved,  though  above  thirty  years  old,  and  the 
blemish  satisfactorily  explained.  In  such  a  case  the  jury 
would  have  to  try  whether  the  rasure  or  interlineation  was 
before  or  after  the  delivery  of  the  deed  ;  for  if  the  rasure 
was  before  that  time  the  deed  is  still  valid.     It  is  only  after 


1  Maybce  v.  Sniffcn,  2  E.  D.  Smith,  1  (1851). 
a  2  Wend.  533  ;  20  Am.  Dec.  Gi9  (1820). 
«  7  Vol.  p.  405. 


RULE    84.]  ALTERATIOX   OF    INSTRUMENTS.  385 

the  delivery  that  a  rasure  or  interlineation  can  efTect  a  deed, 
and  even  then  they  are  in  sorao  cases  immaterial.*  Mr. 
Justice  Butler  in  his  treatise  ^  also  says  that  a  rasure  or 
interlineation  in  a  deed  is  a  suspicious  circumstance  which 
will  make  it  necessary  even  in  the  case  of  a  deed  of  thirty 
years'  standing,  for  the  party  to  prove  the  deed  by  the  wit- 
nesses, if  living,  or  if  dead,  by  proving  their  handwriting 
and  the  handwriting  of  the  party,  in  order  to  encounter  the 
presumption  arising  from  the  blemishes  in  the  deed.  "When 
nothing  appears  but  the  fact  of  an  erasure  or  interlineation 
in  a  material  part  of  the  deed  of  which  no  notice  is  taken 
at  the  time  of  the  execution,  it  is  a  suspicious  circumstance, 
which  requires  some  explanation  on  the  part  of  the  plaintiff, 
but  whether  the  explanation  is  satisfactory  or  not  is  for  the 
jury  to  determine."  In  Wilsony.  Henderson,'^ it  was  said; 
*'  It  is  a  presumption  of  law  that  any  material  alteration  of 
a  note,  appearing  upon  its  face,  was  made  after  it  goes 
into  the  hands  of  the  payee,  and  is  it  for  him  to  show  that 
it  was  made  under  circumstances  which  sustain  it?  The 
authorities  are  both  ways,  and  hence  it  is  difficult  to  extract 
from  them  the  true  rule.  The  question  was  very  fully  con- 
sidered in  the  Supreme  Court  of  Connecticut  in  the  case  of 
Ballet/  V.  Taylor,^  \n  which  the  evident  leaning  of  the  decis- 
ion is  against  the  presumption.  Still  it  may  be  doubted 
whether  the  authorities  cited  by  the  court  would  not  have 
better  sustained  an  opinion  the  other  way.  The  court  said 
circumstances  may  be  such  as  may  require  an  explanation 
from  the  plaintiff.  This  is  surely  true,  and  it  must  be  also 
clear  that  the  whole  question  of  alteration  is  for  the  jury. 
It  is  for  them  to  determine  whether  it  was  made  before,  or 
after  delivery,  or  whether  it  was  with  or  without  the  con- 
sent of  the  maker.  Assuming  that  the  law  presumes  that 
any  alteration  appearing  on  the  note  was  made  after  deliv- 
ery, such  presumption  must  be  very  much  weakened,  if  not 


1  p.  255. 

a  9  S.  &  M.  375 ;  48  Am.  Dec.  716  (184S). 

8  11  Conn.  531. 


386  PRESUMPTIVE  EVIDENCE.        [rULE  84. 

destroyed,  when  the  alteration  operates  prejudicially  to  the 
holder."! 

In  an  early  case  in  Pennsylvania  Chief  Justice  McKean 
had  ruled  that  an  interlineation  in  a  deed  would  be  pre- 
sumed to  have  been  made  after  its  execution.'^  But  this 
decision  is  no  longer  law  in  that  State,  all  the  subsequent 
cases  leaving  it  to  the  jury  to  decide  on  the  evidence  whether 
the  alteration  was  made  before  or  after  the  execution.^ 

In  Ohio  it  is  laid  down  that  where  an  alteration  appear- 
ing on  the  face  of  an  instrument  is  not  peculiarly  suspicious 
and  beneficial  to  the  party  seeking  to  enforce  it,  the  altera- 
tion will  be  presumed  to  have  been  made  either  before  exe- 
cution or  by  agreement  of  the  parties  afterwards.* 

In  Burnliam  v.  Ayer^  it  is  said:  "Although  a  different 
rule  prevails  in  other  jurisdictions,  it  has  been  holden,  and 
may  be  regarded  as  settled,  in  this  State,  that  in  the  absence 
of  evidence  or  circumstances  from  which  an  inference  can 
legitimately  be  drawn  as  to  the  time  when  it  was  actually 
made,  every  alteration  of  an  instrument  will  be  presumed  to 
have  been  made  after  its  execution."  The  instrument  in 
this  case  was  a  deed  and  the  alteration  was  in  the  description. 

In  lUU  V.  Barnes,^  the  date  in  a  note  which  had  orisrin- 
ally  been  written  May  4  had  been  altered  to  April  4.  No 
evidence  when  the  alteration  was  actually  made  was  given, 
but  a  verdict  for  the  plaintiff  was  taken  by  consent,  su])ject 
to  the  opinion  of  the  higher  court.  The  Supreme  Court 
ordered  a  new  trial.  "In  the  absence  of  all  evidence," 
said  Parker,  C.  J.,  "  either  froi;n  the  appearance  of  the  note' 
itself,  or  otherwise,  to  show  when  the  alteration  was  made, 


1  And  see  Heffner  v.  Wenrich,  32  Pa.  St.  423  (1S50) ;  Hill  v.  Coolev,  46  Pa.  St.  259 
(1863). 

=  Morris  v,  Vandercn,  1  Dall.  67  (1782).  And  Pee  Paine  v.  Edsell,  19  Pa  St.  178 
(1852)  ;  I'revost  v.  Gratz,  Pet.  C.  C.  304  v':816) ;  Taylor  v.  Crowninsliielil,  5  N.  Y.  Leg. 
Obs.  209(1816), 

3  Stahl  I'.  Berger,  10  S.  &  R.  171  (18J3) ;  P.abb  v.  Clemson,  Id.  424  (1823) ;  Barrington 
V.  Bank  of  Washington,  14  Id.  422  (1820) ;  irclUinger  r.  Shutz,  10  Id.  46  (1827) ;  Iludson 
V.  Reel.  5  Pa.  St.  279  (1S47) ;  Vanhorne  v.  Dorrance,  2  Dall.  306  (1795). 

*  Huntington  v.  Finch,  3  Ohio  St.  445  (1854). 

*  35  X.  H.  351  (1857). 
«  UN.  II.  395  (1840). 


RULE    84."  ALTEKATION   OF    INSTRUMENTS.  3S7 


it  must  bo  presumed  to  have  been  made  subsequent  to  tlie 
execution  and  delivery  of  the  note.  This  rule  is  necessary 
for  the  security  of  the  maker,  Avho  must  otherwise  take  evi- 
dence of  the  appearance  of  the  note  when  it  is  delivered,  in 
order  to  protect  himself  against  alterations  subsequently 
made  without  his  privity."  And  the  case  was  followed  in 
HumpJireys  v.  Guilow,^  decided  in  1843. 

Two  exceptions  to  Rule  84  obtain  in  the  English  courts 
for  reasons  in  one  case  never,  and  in  the  other  hardly  ever, 
applicable  here.  Alterations  and  interlineations  appearing 
on  the  face  of  a  will  are  presumed  to  have  been  made  after 
its  execution.  The  presumption  is  made  by  the  court  for 
the  purpose  of  carrying  out  more  effectually  the  provisions 
of  the  Wills  Act,  which  makes  void  all  obliterations,  inter- 
lineations or  other  alterations  in  a  will  after  execution 
unless  affirmed  on  the  margin  and  attested  by  witnesses. - 
Nevertheless  in  some  of  the  more  recent  cases  the  English 
judges  have  shown  an  inclination  not  to  make  any  presump- 
tion even  here.  In  William  v.  As/don,^  Wood,  V.  C,  said : 
"  I  find  numerous  alterations  in  this  will,  as  to  which  the 
only  information  afforded  by  the  testatrix  is  that  she  said 
she  had  made  alterations  without  specifying  what  the  altera- 
tions were  which  she  had  so  made.  I  do  not  think  that  it  is 
quite  a  correct  mode  of  stating  the  rule  of  law  to  say  that 
alterations  in  a  will  are  presumed  to  have  been  made  at  one 
time  or  at  another.  The  correct  view,  as  enunciated  in  the 
case  of  Doe  y.  Palmer,^  is  that  the  onus  is  cast  upon  the 
party  who  seeks  to  derive  an  advantage  from  an  alteration 
in  a  Avill  to  adduce  some  evidence  from  which  a  jury  may 
infer  that  the  alteration  was  made  before  the  will  was  exe- 
cuted.    I  do  not  consider  that  the  court  is  bound  to  say 


1  13  N.  H.  3S5. 

2  Grcville  t-.  Tyler,  7  Moore  P.  C.  320  (1851)  •  Cooper  v.  Brockett,4  Id.  4U  (1844) ; 
Tatuin  f.  Catamore,  IC  Q.  B.  745  (1S.')1) ;  Shallcross  v.    Palmer,  15  Jur.  8:;.!   (ISoi) ; 
Taylor  v.  Mosely,6  C.  &  P.  27^!  (1S3:J) ;  Cliristnias  r.  Wlionyates,  3  Swab.  &  Tr.  si 
(18C-2) ;  Simmons  v.  Rudall,  1  Sim.  (N.  S.)  VM  (1S50) ;  Buck  v.  Buck,  6  Ecc.  &  Mar 
681  (IS-JS) ;  Ko  DufTy.  Ir.  Hep.  5  Eq.  50G  (1S71). 

s  JohiTS.  &M.  115  (1860). 
*  IG  Q.  B.  717. 


388  PRESUMPTIVE  EVIDENCE.        [rULE  84. 

that  it  will  presume  such  alteration  to  have  been  made  either 
before  or  after  execution.  With  regard  to  a  will,  I  do  not 
see  any  necessary  presumption  of  the  kind.  As  to  a  deed, 
a  presumption  is  considered  to  exist  that  alterations  have 
been  made  before  execution,  because  if  you  presume  them 
to  have  been  subsequently  introduced  30U  presrflne  a  crime  ; 
but  even  that  view  has  only  recently  been  adopted.  With 
respect  to  a  will,  this  reasoning  has  no  application.  There 
is  no  crime  in  a  testator  choosing  to  make  alterations  in  his 
own  will,  and  all  that  can  be  said  Avith  respect  to  such 
alterations  as  these  is  that  we  do  not  know  when  they  were 
made.  Now  a  testator  can  not  reserve  to  himself  a  power 
of  making  future  testamentary  gifts  by  unattested  instni- 
ments.  If  a  general  statement  by  a  testatrix  that  she  had 
made  some  alterations  in  her  will  were  to  give  validity  to 
an}'-  alterations  found  in  the  instrument  after  her  death,  that 
would  enable  her  at  any  time  after  such  statement  to  make 
as  many  unattested  alterations  as  she  pleased.  I  apprehend 
the  rule  is  that  those  who  propound  a  doubtful  instrument 
must  make  the  doubt  clear.  I  can  not  tell  what  alterations 
the  testatrix  made  before  attestation,  or  what  interests 
might  be  affected  by  alterations  subsequently  made.  Not 
being  able  to  say  which  alterations  are  valid,  I  can  not  give 
effect  to  any  of  them."  ^ 

Secondly,  in  the  case  of  bills  of  exchange  and  promissory 
notes  required  by  statute  to  be  stamped,  the  English  courts 
make  it  incumbent  on  a  party  producing  such  an  instrument 
to  explain  any  alteration  before  it  can  be  introduced  in 
evidence.^  But,  as  pointed  out  by  Hall,  J.,^  there  are  rea- 
sons for  the  ruling  under  the  English  Stamp  Act  which  do 
not  apply  in  other  cases.  The  object  of  the  common-law 
rule  of  proof  is  to  protect  one  party  against  the  fraud  of 

1  Anrl  see  Re  Cadge,  L.  R.  1  P.  &  D.  543  (1868). 

2  Johnson  v.  Duke  of  Marlborough,  2  Stark.  313  (1818) ;  Bishop  v  Chambre,  3  C. 
&P.  55  (1827) ;  Knight  v.  Clements,  8  Ad.  &  El.  215  (1S3S) ;  Clifford  v.  Parker,  2  Man. 
&  Gr.  910  (1841) ;  Caress  v.  Tattersall,  2  Man.  &Gr.  891  (1841)  ;  Andrrson  v.  Weston,  6 
Bing.  X.  C.  302  (1810)  ;  Leykaulf  v.  Ashford,  12  ISFoore,  231  (1827) ;  Sibley  v.  Fisher,  7 
Ad.  &  El.  414  (1837) ;  Ilcnman  &  Dickinson,  5  Bing.  183  (1828). 

3  Bcuinan  v.  Russell,  ante. 


RULE    85.]  ALTERATION   OF    IXSTRUMENTS.  389 

another;  that  of  the  statute  to  protect  the  revenue  from 
the  fraud  of  all  parties.  "  If  an  alteration  be  against  the 
interest  of  the  party  claiming  or  bo  apparently  in  the  hand- 
writing of  the  party  defending,  and  in  cither  case  were  no 
appearances  calculated  to  excite  a  suspicion  of  an  intended 
fraud  upon  the  latter  party,  it  might  be  unjust  to  the  party 
claiming  to  cast  upon  him  the  burden  of  showing  by  extra- 
neous evidence  -when  the  alteration  was  made.  But  these 
considerations  can  have  no  weight  under  the. Stamp  Act. 
The  question  under  that  statute  is  not  by  whom  or  how  the 
alteration  was  made,  but  merely  the  time  when.  One  rule 
of  evidence  might  perhaps  be  necessary  to  protect  the  inter- 
ests of  the  government,  while  another  might  be  quite  suffi- 
cient for  the  preservation  of  those  of  the  parties.  And  for 
the  detection  of  fraud  upon  the  revenue  and  to  prevent  its 
recurrence,  a  more  stringent  rule  of  proof  may  be  required 
in  England  by  considerations  of  public  policy  than  justice 
to  the  parties  would  otherwise  demand."  And  it  is  said 
by  the  learned  judge,  in  the  course  of  his  opinion  in  this 
case,  that  the  single  question  upon  whom  the  burden  of 
proof  devolves  to  account  for  an  alteration  in  a  written 
instrument  with  reference  to  a  supposed  fraud  upon  the 
party,  has  never  been  presented  to  the  English  court  in  any 
of  these  cases.  It  has  always  been  coupled  with  and  been 
overridden  by  the  more  extended  question  in  regard  to  a 
supposed  fraud  upon  the  revenue. 

IIULE  85. —  But  where  the  alteration  is  in  a  different 
handwriting  from  the  rest  of  the  instrument  (A) ;  or 
in  a  different  ink  (B) ;  or  is  in  the  interest  of  the  party 
setting  it  up  (C) ;  or  is  suspicious  on  its  face  (D) ;  or 
the  execution  of  the  instrument  is  denied  under 
oath  (E),  the  burden  of  proof  rests  on  the  party  pro- 
ducing tlic  instrument  to  explain  it  to  the  satisfaction 
of  the  tribunal. 

The  authorities  seem  to  be  uniform  on  this  point,  viz., 
that  when  the  alteration  is  suspicious  on  its  face,  and  bene- 


390  PRESUMPTIVE  EYIDEXCE.        [rULE  85. 

ficial  to  the  party  setting  it  up,  be  must  explain  it  to  the 
satisfaction  of  the  jury.^ 

An  alteration  in  a  note  after  its  delivery  is  presumed  to 
have  been  made  by  the  payee,  and  the  burden  is  on  him  to 
show  the  assent  of  the  maker. ^ 

Illustrationtt. 


I.  An  action'  is  on  a  promissory  note.  The  words,  " -with  interest  at 
eiglit  per  cent "  seem  to  be  added  in  a  different  hand.  The  burden 
is  on  the  plaintiff    to  explain  the  alteration.^ 

II.  A  sues  B.  as  iudorser  of  a  promissory  note.  The  body  of  the  note 
is  in  B.'s  handwriting.  At  the  end  of  the  instrument  are  the  words, 
"  payable  at  the  bank  of  Pittsburg."  The  court  is  requested,  but  refuses 
to  rule  that  this  raises  a  presumption  of  alteration  after  its  execution. 
Held,  error.* 

In  Cox  V.  Palmer,^  McCrary,  J.,  after  saying  :  "  What  is 
the  presumption  in  such  a  case  ?  Upon  this  question  there 
is  an  apparent  conflict  of  authority.  I  think,  however,  it 
is  apparent  only,  and  not  real.  There  are  cases  in  which  it 
has  been  held  that  an  interlineation  is  presumably  an  unau- 
thorized alteration  of  the  instrument  after  execution,  and 
that  the  burden  is  upon  the  party  offering  the  instrument 
in  evidence  to  show  the  contrary.  There  are  also  cases  in 
■which  interlineations  have  been  held  to  be  prima  facie  bona 
fide^  and  that  the  burden  is  upon  the  party  attacking  the 
instrument  to  show  that  it  was  altered  after  execution," 
says  :  "But  I  think  that  one  rule  governs  in  all  these  cases, 
and  it  is  this:  If  the  interlineation  is  in  itself  suspicious,  as 
if  it  appears  to  be  contrary  to  the  probable  meaning  of  the 


1  Tillow  V.  Clinton  Ins.  Co.,  7  Barb.  668  (1850);  Ilerrick  v.  Malin,22  Wend.  3T3 
(1S39);  Croft  v.  White,  36  Miss.  455  (1S58) ;  Clarlt  v.  Ecljstein,  23  Pa.  St.  507  (18.54); 
Kewcomb  v.  Prcsbury,  8  Mete.  406  (1844) ;  Gillett  v.  Sweat,  6  HI.  475  (1844) ;  Davis  v. 
Carlisle,  6  Ala.  707  (1844). 

2  White  V.  Ilass,  32  Ala.  433  (1858). 

3  Commercial  Bank  v.  Lum,  0  How.  (Miss.)  414  (1843) ;  Bishop  r.  Chambre.S  C. 
&C.  .55  (1827). 

<  Simpson  v.  Stackhouse,  9  Pa.  St.  ISC;  49  Am.  Dec.  554  (1848). 
6  1  McCrary,  331  (1380). 


\ 


RULE    85.]  ALTERATION   OF    INSTRUMENTS.  391 

instrument  as  it  stood  before  the  insertion  of  intcrlinccl 
words,  or  if  it  is  in  a  handwriting  different  from  the  body 
of  the  instrument,  or  appears  to  have  been  written  "svith  a 
different  ink  —  in  all  such  cases,  if  the  court  considers  the 
interlineation  suspicious  on  its  face,  the  presumption  will 
be  that  it  was  an  unauthorized  alteration  after  execution. 
On  the  other  hand,  if  the  interlineation  appears  in  the  same 
handwriting  M'ith  the  original  instrument,  and  bears  no  evi- 
dence on  its  face  of  having  been  made  subsequent  to  the 
execution  of  the  instrument,  and  especially  if  it  only  makes 
clear  what  was  the  evident  intention  of  the  parties,  the  law 
will  presume  that  it  was  made  in  good  faith  and  before 
execution." 

In  case  II.  it  was  said:  *'  Plow  stands  the  question  on 
principle?  The  English  decisions  are  founded  in  reason  and 
not  on  considerations  growing  out  of  the  stamp  acts.  He 
who  takes  a  blemished  bill  or  note  takes  it  with  its  imper- 
fections on  its  head.  He  becomes  si)onsor  for  them  and 
though  he  may  act  honestly,  he  acts  negligently.  But  the 
law  presumes  against  negligence  as  a  degree  of  culpability  ; 
and  it  presumes  that  he  had  not  only  satisfied  himself  of  the 
innocence  of  the  transaction,  but  that  he  had  provided  him- 
self with  the  proofs  of  it  to  meet  a  security  he  had  reason 
to  expect.  It  is  of  no  little  weight  too  that  the  altered  in- 
strument is  found  in  his  hands  and  that  no  person  else  can 
be  called  on  to  speak  of  it;  for,  without  a  presumption  to 
sustain  him,  the  maker  would,  in  every  case,  be  defenseless. 
It  may  be  said  that  the  holder,  with  such  a  presumption 
against  him,  would  also  be  defenseless.  But  it  was  his 
fault  to  take  such  a  note.  As  notes  and  bills  were  intended 
for  negotiation  and  as  payers  do  not  usually  receive 
them,  when  clogged  with  impediments  to  their  circulation 
there  is  a  presumption  that  such  an  instrument  starts  fair 
and  untarnished,  which  stimds  till  it  is  repelled  ;  and  aholder 
ought,  therefore,  to  explain  why  he  took  it  branded  with 
marks  of  suspicion  which  would  probably  render  it  unfit  for 
his  purposes.     The  very  fact  that  he  received  it  is  presump- 


392  PRESOIPTIVE   EVIDENCE.  [rULE    85. 

tive  evidence  that  it  was  unaltered  at  the  time  ;  and  to  say 
the  least  his  folly  or  his  knavery  raised  a  suspicion  which 
hcou'^ht  to  remove.  The  maker  of  a  note  can  not  be  ex- 
pected to  account  for  what  may  have  happened  to  it  after 
it  left  his  hands;  but  a  payee  or  indorsee  who  takes  it,  con- 
demned and  discredited  on  the  face  of  it,  ought  to  bo  pre- 
pared to  show  what  it  was  when  he  received  it.  Now  it  is 
ao-reed  that  the  note  before  us  was  drawn  and  indorsed  for 
the  accommodation  of  the  maker  who  negotiated  it,  and  who 
consequently  stands  as  if  it  had  been  drawn  by  the  indorsee 
and  indorsed  by  himself,  as  it  might  just  as  well  have  been, 
the  difference  being  in  the  plan  of  the  security  and  not  in  its 
effect.  It  was  distinctly  proved  that  the  body  of  the  note 
is  in  the  handwriting  of  the  defendant  and  that  the  words, 
"  payable  at  the  bank  of  Pittsburg,"  are  not.  The  differ- 
ence in  the  character  of  the  writing  is  obvious,  and  the 
additional  words  are  broken  into  two  half-lines,  for  to  have 
comprised  them  in  one  would  have  required  it  to  be  run 
through  the  signature  and  they  were  necessarily  crowded 
into  the  left  hand  corner  at  the  bottom  of  the  paper.  That 
is  certainly  not  the  ordinary  collocation  of  the  lines  of  a 
commercial  instrument.  Mr.  Chitty  says  in  his  Treatise  on 
Bills,^  that  a  drawee  ought  not  to  accept  a  bill  which  has  the 
least  appearance  of  alteration ;  and  it  was  not  disputed  at 
the  trial  that  this  note  had  that  appearance,  or  that  the  al- 
teration was  in  a  material  part  of  it,  its  effect  being  to  dis- 
pense with  personal  notice  of  dishonor.  The  question  was 
ontheo?n^s  and  the  defendant  prayed  instruction  that  the 
body  of  the  note  being  in  his  handwriting,  and  the  question- 
able words  being  in  a  different  hand,  it  was  incumbent  on  the 
plaintiff  to  show  that  they  were  in  the  instrument  at  the 
time  of  indorsement,  or  with  the  defendant's  consent; to 
which  the  court  responded  that  the  jury  must  decide  as  a 
matter  of  fact.  The  response  was  a  refusal  of  the  prayer 
and  a  denial  that  there  was  any  presumption  to  lead  to  a 
particular  conclusion." 

1  p.  213. 


EULE  85.]     ALTERATION  OF  INSTRUMENTS.  393 

B. 

I.  In  an  action  on  a  writton  guaranty  the  words  "and  company" 
appear  therein  in  a  different  ink  and  handwriting  from  tlie  rest  of  the 
instrument.  The  burden  is  on  the  plaintiff  to  show  that  this  was  done 
before  tlie  instrument  was  executed.^ 

"  "We  are  not  prepared  to  say,"  said  Mctcalf,  eJ.,  in  case 
I.,  •'  that  a  material  alteration  manifest  on  the  face  of  the 
instrument  is  in  all  cases  whatsoever  such  a  suspicious  cir- 
cumstance as  throws  the  burden  of  proof  on  the  party 
claiming  under  the  instrument.  The  effect  of  such  a  rule 
of  law  would  be  that  if  no  evidence  is  given  by  a  party 
claiming  under  such  an  instrument  the  issue  must  always 
be  found  against  him,  this  being  the  meaning  of  the  '  burden 
of  proof.'  But  we  are  of  opinion  upon  the  authorities, 
English  and  American,  and  upon  principle,  that  the  burden 
of  proof  in  explanation  of  the  instrument  in  suit  in  this 
case  was  on  the  plaintitf.  It  was  admitted  that  the  words 
*  and  company '  which  were  interlined  in  the  guaranty 
were  in  a  different  handwriting  from  that  of  the  rest  of  the 
instalment,  and  also  in  different  ink.  In  such  a  case  the 
burden  of  explanation  ought  to  be  on  the  plaintiff,  for  such 
an  alteration  certainly  throws  suspicion  upon  the  instru- 
ment." 

In  Smi/h  v.  McGowan,^  it  was  said:  "There  is  no 
principle  of  the  common  law  which  requires  a  deed  to  be 
written  throughout  with  the  same  colored  ink.  The  fact 
that  ink  of  dillerent  colors  is  used  may  or  may  not  aflbrd 
evidence  of  a  fraudulent  alteration  of  an  instrument.  It 
may  often  be  an  important  item  of  evidence  on  that  ques- 
tion, and  it  may  be  consistent  with  the  utmost  honesty. 
There  is  nothing  in  the  fact,  considered  by  itself,  which  will 
require  the  court  to  exclude  the  instrument  for  that  reason 
as  matter  of  law.     It  may  be  a  proper  consideration  for 


1  WiUlc  c.  Armsbr,  r>  Cash.  3U  (1S50) ;  Dayis  v.  Jenny,  IMetc.  223  (1340).    And  see 
Crablico  v.  Clark,  20  Me.  337  (1S41). 
«  3  Barb.  400  (ISIS). 


394  PRESUMPrm:  evidence.  [rule  85. 

the  jury  in  connection  with  other  facts  on  the  question  of  a 
fraudulent  alteration." 

C. 

I.  A  note  was  sued  on  dated  in  1831.  The  date  appeared  to  have  been 
altered  from  1835.    The  burden  was  on  the  plaintiff  to  explain  it.^ 

II.  An  action  was  brought  on  a  bond  dated  November  11,  1821.  The 
defense  was  that  the  date  had  been  altered  from  November  11,  1820.  It 
was  not  incumbent  on  the  plaintiff  to  explain  the  alteration.^ 

In  case  I.  the  alteration  was  in  the  plaintiff's  favor,  for 
it  entitled  him  to  four  years'  more  interest  than  as  it  origin- 
ally stood.  In  case  II.,  on  the  other  hand,  the  alteration 
■was  prejudicial  to  the  plaintiff,  for  it  deprived  him  of  a 
year's  interest. 

*' Formerly,"  it  was  said  in  case  II.,  "  the  court  judged 
of  an  erasure  by  inspection  ;  latterly  the  jury  do.  In  judg- 
ino;  by  inspection  the  court  governed  itself,  as  jurors  do 
now,  by  probabilities  in  the  absence  of  positive  proof.  If 
the  alteration  on  the  erased  part  was  in  the  handwriting  of 
the  obligee  or  a  stranger,  and  beneficial  to  the  obligee,  the 
court  adjudged  it  an  erasure,  that  is  an  alteration,  made 
after  the  execution,  and  avoided  the  deed.  If  prejudicial 
to  the  obligee,  the  court  adjudged  it  no  erasure,  that  is 
made  before  execution,  and  did  not  avoid  the  deed.  If  in 
the  handwriting  of  the  obligor  either  way,  they  adjudged  it 
no  erasure,  that  the  alteration  was  made  before  execution, 
and  did  not  avoid  the  deed.  Juries  are  now  governed  by 
the  same  rules.  In  the  case  before  us  the  date  of  the  bond 
is  altered,  and  it  was  made  payable  in  1821  instead  of  1820, 
as  it  is  said  is  evident  from  the  erasure  not  being  complete, 
as  appears  from  an  inspection  of  the  deed,  and  the  altera- 
tion is  in  the  handwriting  of  the  obligee,  and  prejudicial  to 
the  obligee,  for  he  loses  one  year's  interest.  It  is  payable 
from  the  date  or  from  a  fixed  period  from  the  date.     One 

1  Warren  v.  Layton,  3  Ilarr.  (Del.)  404  (1840) ;  Stoner  v.  Ellis,  6  Ind.  159  (1855). 

2  PuUeu  V.  Shaw,  ?,  Dev.  2;8.    And  see   Sayre  v.  Reynolds,  5  N.  J.  L.  737  (1820); 
Coulsou  V.  Watson,  9  Tet.  98  (1835) ;  Farlee  v.  Farlee,  21  N.  J.  L.  2S4  (1818). 


RULE    85.]  ALTERATION   OF   IXSTRUMENTS.  395 

of  the  rules  before  mentioned,  to  wit,  that  if  the  alteration 
is  prejudicial  to  the  obligee,  though  in  his  handwriting,  it  is 
no  erasure,  determines  this  case,  as  it  is  presumed  that  the 
alteration  was  made  before  execution.  If  the  question  was 
to  bo  decided  by  the  court,  as  formerly,  wo  should  pro- 
nounce it  to  be  no  erasure.  In  the  absence  of  all  evidence 
dehors  the  deed  the  jury  were  properly  instructed  to  pro- 
nounce it  so." 

In  Stoner  v.  Fills, '^  it  was  said:  "  Where  the  alteration 
is  of  such  a  character  as  to  defeat  entirely  the  operation  of 
the  instrument,  for  any  purpose,  as  in  case  of  the  erasure  of 
the  signature  and  seal  to  a  deed,  or  other  instrument,  so 
that  admitting  all  to  be  true  that  appears,  upon  the  in- 
strument, when  produced,  it  would  be  void  in  law,  it  should 
be  explained  in  the  first  instance,  before  it  should  be  per- 
mitted to  go  to  the  jury.  In  other  cases,  the  instrument 
should  be  given  in  evidence,  and  should  go  to  the  jury, 
upon  the  ordinary  proof  of  its  execution,  although  an  alter- 
ation may  appear  in  it,  leaving  the  parties  to  make  such 
explanatory  evidence  as  they  may  choose  to  offer.  But  if 
there  is  neither  intrinsic  nor  extrinsic  evidence  as  to 
when  the  alteration  M'as  made  the  presumption  of  the  law 
is,  that  it  was  made  before  or  at  the  execution  of  the  in- 
strument. There  are  some  considerations  of  public  policy 
which  seem  to  us  to  have  weio;ht  in  inducing  this  conclusion. 
With  us,  the  business  of  conveyancing  does  not  pertain  to 
the  Icg'd  profession  exclusively.  Where  estates  are  laro^e, 
and  lands  are  held  by  the  comparatively  few,  titles  are 
seldom  passed  without  great  consideration,  while  with  us  the 
ownership  of  lands  in  fee  is  almost  universal,  and  real  estate 
is,  like  merchandise,  a  subject  of  trafBc.  Deeds  are  drawn 
by  justices  of  the  peace,  and  almost  by  any  person  of  ordin- 
ary intelligence,  who  will  observe  usually  much  less  accu- 
racy and  precision  than  whore  the  business  is  in  the  hands 
of  a  branch  of  the   legal  profession.     The  same  may  be 

1  6  Ind.  159  (1855), 


396  PEESUMrTivE  EviDExcE.  [rule  85. 

said  in  reiTfird  to  all  sorts  of  traffic  so  common  amono;  our 
people,  in  which  notes,  agreements,  and  other  contracts 
are  executed  with  little  regard  to  professional  accuracy. 
To  declare  all  these  prijua  facie  fraudulent  and  void,  we 
are  satisfied  would  be  generally  indulging  in  a  presumption 
against  the  facts,  and  that  it  would  produce  more  injustice 
than  to  hold  them  void." 

D. 

I.  In  an  action  on  a  bill  of  exchange  the  bill  was  produced  by  the 
plaintiff.  The  upper  left-hand  corner  of  the  bill  was  torn  off,  carrying 
with  it  the  word  "second"  as  preceding  the  words  "each  for."  The 
printed  word  "second"  in  the  body  of  the  bill  had  black  lines  drawn 
through  it,  and  the  word  "only"  written  over  it.  The  printed  words 
"first  unpaid  "  had  also  black  lines  drawn  through  them.  The  burden 
was  on  the  plaintiff  to  explain  this.^ 

In  Dodge  v.  Haskell,'^  Peters,  J.,  says  :  '*  Where  a  plain- 
tiff declares  upon  a  note  and  offers  it  in  evidence  against 
the  maker,  there  is  a  burden  upon  him  to  satisfy  the  jury 
that  an  apparent  alteration  of  the  note  was  made  before 
delivery.  This  arises  from  the  general  burden  of  proof 
which  the  plaintiff  has  to  sustain  to  show  that  the  instrument 
declared  on  is  the  genuine  and  valid  promise  of  the  defend- 
ants. Therefore,  if  there  is  evidence  each  way  upon  a 
question  of  alteration,  the  preponderance  must  be  in  favor 
of  the  plaintiff.  The  jury  are  to  be  satisfied  that  a  note 
is  genuine  and  not  fraudulent.  But  the  paper  itself,  un- 
aided by  other  evidence,  may  satisfy  the  jury  or  it  may 
not.  All  depends  upon  circumstances.  The  alteration 
may  be  immaterial,  or  comparatively  so,  or  natural  or 
beneficial  to  the  maker  or  made  by  the  same  pen  and  ink 
as  the  l)ody  of  the  instrument  or  in  the  hand  writing  of  the 
maker  (where  one  maker),  or  in  that  of  the  witness  to  the 
instrument,  and  in  such  cases  it  would  not  be  suspicious. 


1  Fontaine  v.  Gunther,  31  Ala.  2G4  (1857).  And  see  Van  Buren  v.  Cockburn,  14 
Barb.  1 18  (1S52) ;  Ridgcley  v.  Johnson,  11  Id.  540  (1851) ;  Waring  v.  Smyth,  2  Barb.  Oh. 
11  (1847.) 

2  69  Me.  429  (1879). 


RULE  85.]     ALTERATION  OF  INSTRUMENTS.  397 

On  the  other  hand  the  alteration  may  present  indications  of 
fraud  or  forgery.  AVhether  it  does  or  not  is  a  question  of 
fact  and  not  of  hiw.  It  can  not  be  a  question  of  hiw  to  decide 
^\hcthcr  a  note  is  in  two  inks  or  one  or  two  handwritings 
or  one,  or  why  so  written.  It  is  said  that  alteration  ^r/wa 
y*ac2e  indicates  fraud.  It  is  sure  that  it  does  not  in  all  cases. 
On  the  other  hand  it  is  sure  that  fraud  is  not  to  be  presumed. 
But  it  would  be  extreme  to  say  that  an  instrument  might 
not  be  so  altered  as  to  show  upon  its  face  the  grossest  at- 
tempt at  forgery.  Therefore  Avhat  alteration  or  degree  or 
kind  of  alteration  may  exist  M'ilhout  being  suspicious  enough 
to  demand  explanation  is  for  the  jury  to  settle." 

E. 

I.  Suit  was  brought  upon  the  following  Instrument:  "Brown  City, 
April  1,  1847.  — Against  the  tenth  daj-  of  July  next,  I  promise  to  deliver 
at  the  residence  of  James  Short  fifty  dollars'  worth  of  good  cattle,  to  be 
two  years  old  past,  not  more  than  two  shall  be  heifers,  any  number  above 
the  fifty  dollars'  worth  will  (thirty  dollars'  worth  of  salable  cattle  shall 
be  delivered  above  the  fifty  $5  worth)  be  received  on  the  house  debt,  all 
to  be  salable  cattle."  The  words  in  parenthesis  bad  been  interlined. 
The  defendant,  as  required  by  statute,  denied  the  execution  of  the  instru- 
ment uuder  oath.    The  plaintiff  was  bound  to  explain  the  alteration. ^ 

In  case  I.  it  was  said  :  *'  Upon  this  point  there  is  a  con- 
flict of  the  authorities.  Some  courts  have  held  that  if 
nothing  appears  to  the  contrary,  the  alteration  will  be  pre- 
sumed to  have  been  made  contemporaneously  with  the 
execution  of  the  instrument.  The  reason  given  by  the 
courts  that  have  so  decided  is  that  the  law  will  never  pre- 
sume wrong,  and  to  hold  an  alteration  to  have  been  made 
after  the  execution  of  the  instrument  would  be  to  presume 
the  holder  guilty  of  forgery.  This  reason  has  no  founda- 
tion in  this  State,  so  far  at  least  as  relates  to  instruments 
of  writing  upon  which  suits  are  brought  or  which  are  setup 


1  Walters  v.  Short,  10  111.  252  (1848).  But  in  a  Texas  case  where  the  alteration 
was  not  an  apparent  one  (viz.,  following  a  blank),  the  burden  of  pioving  tlii'  aitcra- 
tion  —  llie  oxeciilion  being  (lonlfJ  under  oalh  —  was  held  to  be  on  (he  defendant. 
Wells  V.  Moore,  15  Tex.  521  (1855) ;  Muckleroy  v.  Bethany,  27  Id.  651  (1S64). 


398  PRESOIPTIVE   EVIDENCE.  [rULE    85. 

by  "^ay  of  defense  or  set-off,  the  execution  of  which  by  the 
fourteenth  section  of  the  eighty-third  chapter  of  the  Revised 
Statutes  a  party  is  not  permitted  to  deny,  except  on  oath. 
"When  such  a  denial  is  made  on  oath,  as  in  the  present  case, 
the  law  would  presume  quite  as  great  wrong  in  assuming 
that  the  party  making  oath  that  the  instrument  was  not  his, 
had  been  guilty  of  perjury,  as  in  assuming  that  the  holder 
of  the  instrument  had  altered  it  after  its  execution."  The 
court  in  this  case  criticised  the  soundness  of  the  rule  inde- 
pendent of  the  statute  also. 

In  one  of  the  latest  cases  the  rule  is  laid  down  thus,  viz. : 
that  where  there  is  no  dispute  on  the  interlineation  or  alter- 
ation, the  presumption  is  that  it  was  made  before  the 
execution,  but  when  a  contest  arises  and  the  instrument  is 
offered  in  evidence,  and  the  alteration  is  beneficial  to  the 
party  presenting  it,  the  presumption  of  law  is  not  the  other 
way  (viz.,  that  it  was  made  after ")  but  the  burden  is  on  him 
to  explain  it. 

"  When  we  look  at  a  written  instrument  containing  an 
interlineation  or  erasure,"  said  Woodward,  J.,  "  without 
reference  to  contested  rights,  the  natural  and  fair  presump- 
tion doubtless  is  that  the  alteration  was  made  before  signa- 
ture, because  if  altered  after  execution  it  would  be  forgery, 
which  is  never  to  be  presumed.  Instruments  of  writing 
executed  with  the  solemnities  appointed  by  law  are  like  the 
men  who  made  them,  to  be  presumed  innocent  until  some 
circumstance  is  shown  to  beget  a  counter  presumption.  But 
when  a  contest  occurs,  and  the  instrument  is  offered  in  evi- 
dence, the  question  at  once  arises  whether  the  alteration  is 
beneficial  to  the  party  offering  it;  if  it  be  not,  as  in  the 
instance  of  a  bond  or  note  altered  to  a  less  sum,  the  imrna 
/aae  presumption  is  unchanged;  if  it  be,  as  was  the  case 
here,  we  do  not  presume  a  forgery,  but  we  hold  the  party 
ofl*erin2:  it  in  evidence  and  seeking  advantage  from  it  bound 
to  explain  the  alteration  to  the  satisfaction  of  the  jury.  The 
initiative  and  burden  of  proof  are  thrown  on  him.  If  the 
interlineation  or  erasure  have  been  noted  in  the  attestation 


RULE    8.3.]  ALTERATION   OF   INSTRUMENTS.  399 

clause  as  having  been  made  before  signature,  this  is  suffi- 
cient, or  if  the  simihirity  of  ink  and  handwriting,  or  the 
conduct  of  the  parties  or  other  facts  proved  shall  persuade 
a  jury  that  it  was  so  made,  the  instrument  is  relieved  from 
suspicion,  and  the  party  offering  it  is  entitled  to  the  benefits 
of  it.  So  long  as  any  ground  of  suspicion  is  apparent  on 
the  face  of  the  instrument,  the  law  presumes  nothing,  but 
leaves  the  question  as  to  the  time  when  it  was  done  to  bo 
ultimately  found  by  the  jury  upon  proofs  to  be  adduced  by 
him  who  offers  the  evidence."^ 

In  Simpson  v.  Davis,-  it  was  ruled  that  where  a  declara- 
tion on  a  promissory  note  alleges  that  the  defendant  made 
the  note,  and  the  answer  denies  this  and  alleges  an  altera- 
tion, proof  of  the  defendant's  signature  is  prima  facie 
evidence  that  the  whole  body  of  the  note  written  over  it  is 
the  act  of  the  defendant ;  but  the  burden  of  proof  is  on 
the  plaintiff  to  show  that  the  note  declared  on  was  the  note 
of  the  defendant. 

In  Bailei/  v.  Taylor,^  the  court  refused  to  rule  that  there 
■was  a  presumption  that  an  alteration  of  the  amount  of  a 
note  had  been  made  after  its  execution,  saying:  <'Tho 
result  to  which  we  have  arrived  is  that  where  there  is  an 
erasure  or  alteration  in  an  instrument  under  which  a  party 
derives  his  title  and  the  adverse  party  claims  that  such  erasure 
or  alteration  M'as  improperly  made,  the  jury  are  from  all  the 
circumstances  to  determine  whether  the  instrument  is  thereby 
rendered  invalid.  Circumstances  may  be  such  as  may 
require  this  explanation  on  the  part  of  the  plaintiff  or  on 
the  other  hand  may  arise  where  it  would  be  absurd  to 
require  it." 


1  Jordan  v.  Stewart,  23  Pa.  St.  216  (1S54). 
«  119  Mass.  269(187(1). 
»  11  Coim.  531  (1836). 


PART  IV. 


PEESUMPTIONS  IN  THE  LAW  OF 
REAL  PROPERTY. 


2G  (  401  ) 


I 


CHAPTER    XYIIL 

THE    PRESOIPTIONS    FROM    POSSESSION  A^'D  LAPSE 

OF  TIME. 

RULiE  8G.  — Wlicre  it  is  shown  that  .any  person  has  for 
a  long  period  of  time  exercised  any  jiroprietary  right 
which  might  Iiave  had  a  lawful  origin  hy  grant  or 
license  from  the  puhlic  or  from  a  private  i)erson,  and 
the  exercise  of  whicli  might  and  naturally  would  have 
been  prevented  by  the  persons  interested  if  it  had 
not  had  a  lawful  origin,  the  presumption  arises  that 
sucli  right  had  a  lawful  origin,  and  that  It  was  cre- 
ated hy  a  proper  instrument  which  has  been  lost.^ 

Illustrations. 

I.  The  question  is  whether  B.  is  entitled  to  recover  from  A.  the  pos- 
session of  lauds  which  A.'s  father  and  mother  successively  occupied  from 
175-i  to  1793,  and  which  B.  had  occupied  without  title  from  1793  to  1809. 


'  Thus,  a  grant  is  presumed  from  lapse  of  time.  Field  v.  Bro^\Ti,  24  Gratt.  74 
(1873);  Hardy  v.  McCullough,  23  Gratt.  2.31  (1873);  Hooker  v.  Perkins,  14  Wis.  79 
(ISGl) ;  Hurst  v.  McNeil,  1  Wash.  C.  C.  70  (1S04) ;  Uochell  v.  Holmes,  2  Bay,  4S7  (15^03) ; 
Frost  V.  Drown,  2  Bay,  133  (170S) ;  Williams  v.  Donnell,  2  Head,  095  (1S59) ;  Marr  v. 
Gilliam,  1  Cold.  4S3  (ISGO) ;  Grimes  v.  Bastrop,  2(j  Tex.  310  (1S02) ;  Taylor  v.  Walking, 
26  Tex.  G?3  (1S03) ;  Rhodes  v.  Whitehead,  27  Tex.  304  (18G3) ;  Walker  v.  Hanks,  27  Tex. 
535  (1SC4) ;  Farrer  v.  Merrill,  1  Me,  17  (18-JO) ;  Tinkham  v.  Arnold,  3  Me.  120  (1S24) ; 
Cheney  v.  Walkins,  1  H.  &  J.  (Md.)  327  (1S04) ;  Sparhawk  r.  Bullard,  1  Mete.  05  (1840) ; 
Proprietors  v.  Bullard,  2  Mete.  363  (1841).  As  a  deed.  Hepburn  r.  Auld,  5  Cranch, 
202  (ISOO) ;  Weathevliead  v.  Baskerville,  11  How.  329  (1850) ;  Townsend  v.  Downer, 
32  Vt.  183  (1S.">0) ;  Mclvin  v.  Locks  and  Canals,  17  Pick.  255  (1S35) ;  Newman  r.  Studley, 

5  Mo.  201  (1838) ;  Blair  v.  Marks,  27  Mo.  579  (1858)  ;  Chiles  v.  Conley,  2  Dana.  21  (1834). 
Or  a  lease.  Sellick  f.  Starr,  5  Vt.  255  (1833).  And  title  to  proi)erty  generally  from 
possession.  Borough  of  Birmingham  v.  Anderson,  40  Pa.  St.  507  (ISGl) ;  Warner  t". 
flenby,  47  Pa.  .St.  187  (1S64) ;  W^illey  v.  Day,  51  Pa.  St.  51  (1865) ;  Youngman  i:  Linn, 
62  Pa.  St.  413  (18f;c>) ;  Glass  r.  Gilbert,  58  Pa.  St.  206  (1868) ;  Duke  v.  Thompson,  16 
Ohio,  35  (1*17)  ;  Society  for  Propagation  of  the  Gospel  r.  Young,  2  X.  H.  310  (1S20); 
Wendell  v.  Blanehard,  2  N.  H.  45G  (1822);  Thompson  r.  Carr,  5  N.  II.  510  (1S31) ; 
Cambridge  r.  Lexington,  17  Pick.  222  (18;i5) ;  Fourth  Parish  r.  Springfield,  IS  Pick. 
319  (1830^  ;  Frilz  v.  I'.randon,  78  Pa.  St.  342  (1875) ;  Jackson  v.  McCall,  10  Johns.  377; 

6  Am.  Dec.  :U3  (ISl:'.)  ;  Fitzhugh  r.  Croghan,  2  J.  J.  Marsh.  429;  19  Am.  Dec.  139 
(1829) ;  Valentino  v.  Piper,  23  Pick.  85;  33  Am.  Dec.  715  (1839) ;  Brown  r.  McKmney, 

(403) 


404  PEESUMPTIVE    EVIDENCE.  [rULE    86. 

The  uiKlisturbed  occupation  for  thirty-nine  years  raises  a  presumption  of 
a  grant  by  the  crown  to  A.'s  father.^ 

II.  A  fishing  mill  dam  was  erected  more  than  one  hundred  and  ten 
years  before  ISol,  in  the  River  Derwent,  in  Cumberland  (not  being  navi- 
gable at  that  place),  and  was  used  for  more  than  sixty  years  before  ISGl, 
in  the  manner  in  which  it  was  used  in  18G1.  This  raises  a  presumption 
that  all  the  upper  proprietors  whose  rights  were  injuriously  affected  by 
the  dam  had  granted  a  right  to  erect  it.^ 

III.  Title  to  a  fishery  was  in  S.  in  1748;  partition  of  his  estate  was 
had,  and  it  was  adjudged  in  1754  to  "the  repi-esentatives  of  M.,  wife  of 
J.,"  subject  to  a  ground  rent.  In  1805  E.  and  others,  reciting  that  they 
were  heirs  of  J.,  conveyed  to  C.  aninterest  in  the  fishery.  The  presump- 
tion is  that  C.'s  title  was  good.* 

TV.  In  1778  J.  A.  conveyed  a  parcel  of  land  described  as  "part  of  a  lot 
of  swamp  which  D.  S.  bought  of  P.  A."  The  laud  was  occupied  under 
this  deed  from  1778  to  1830.  The  existence  of  a  deed  from  D.  S.  to  J.  A. 
will  be  presumed.* 

V.  An  agreement  for  the  sale  of  a  piece  of  land  is  made  in  1689. 
Parties  under  that  agreement  have  occupied  since.  A  jury  in  1809,  may 
presume  a  conveyance  pursuant  to  the  agreement.* 

VI.  A  grant  of  a  stream  of  water  or  of  a  part  thereof  by  fixed  bound- 
aries will  be  presumed  to  have  been  made  by  a  deed,  after  an  adverse 
possession  of  twenty  years.* 

YII.  A  church  is  built  on  a  tract  of  land,  occupying  a  part  thereof  as  a 
burial  ground  for  ninety  years.  This  raises  a  presumption  of  a  grant 
from  the  State. ^ 


9  Watts,  565;  36  Am.  Dec.  139  (1840) ;  Berthelemy  v.  Johnson,  3  B.  Mon.  90;  3S  Am. 
Dec.  179  (1842) ;  Casey  v.  Inloes,  1  Gill.  430;  39  Am.  Dec.  658  (1814) ;  McCorry  r.  King, 
3  Humph.  2J7;  30  Am.  Dec  1G5  (1842) ;  Farrow  v.  Edmundson,  4  B.  Mon.  665;  41  Am. 
Dec.  250  (1814) ;  Budd  v.  Brooke,  3  Gill  (Md.),  108;  43  Am.  Dec.  321  (1845) ;  Gathings 
V.  AVilliams,  1  Ired.  (L.)  487;  44  Am.  Dec.  49  (1845) ;  Iloey  v.  Finnan,  1  Pa.  St.  295;  44 
Am.  Dec.  129  (1815) ;  Jackson  v.  Moore,  13  Johns.  516;  7  Am.  Dec.  379  (1816) ;  Alex- 
ander V.  Walter,  8  Gill,  237;  .50  Am.  Dec.  688  (1849) ;  Claflin  v.  Malonc,  9  B.  Mon.  4S6; 
60  Am.  Dec.  525  (1849) ;  Lenoir  v.  Ralney,  15  Ala.  667  (1849) ;  McCall  v.  Doe,  17  Ala. 
533  (1830) ;  Sparks  v.  Uawls,  17  Ala.  211  (1850) ;  Barnes  v.  Moblcy,  21  Ala.  232  (1852) ; 
Hobbs  V.  Bibb,  2  Stew.  (Ala.)  54  (1829) ;  Wilson  v.  Glenn,  68  Ala.  3S3  (1S80) ;  Ilanford 
V.  Fitch,  41  Conn.  486  (1874) ;  Crow  v.  Marshall,  15  Mo.  499  (1852) ;  Colvin  v.  Worford, 
20  Md.  358  (1808) ;  Frantz  v.  Ireland,  06  Barb.  386  (1873). 

1  Goodtitle  V.  Baldwin,  11  East,  483;  see  Devine  v.  Wilson,  10  Moore  P.  C.  502. 

s  LeconQeld  v.  Lonsdale,  L.  R.  5  C.  P.  657. 

8  Carters.  Tinicum  Fishing  Co.,  77  Pa.  St.  310  (1875). 

4  Eyder  v.  Hathaway,  21  Pick.  298  (1838) ;  White  v.  Loring,  24  Pick.  319  (1837). 

0  Jackson  v.  Murray,  7  Johns.  6  (1810) ;  see  Jackson  v.  Schoonniaker,  7  Jonns.  13 
(1810) ;  Jackson  v.  Sharp,  9  Johns.  105  (1812) ;  Doe  v.  Campbell,  10  Johns.  475  (181,3). 

«  BuUcn  V.  Runnells,  2  N.  II.  255;  9  Am.  Dec.  55  (1820) ;  Strickler  v.  Todd,  10  S.  & 
E.  63;  13  Am.  Dec.  649  (1823). 

'  Malherv.  Trinity  Church,  3  S.&R.  509;  8  Am.  Dec.  003  (1816). 


RULE    8G.]         rRKSUiimONS   FRO.M   POSSESSION.  405 

Vlir.  A  person  litis  had  the  possession  and  use  of  an  incorporeal  hera- 
ditaniunt  for  a  lung  time.  The  law  presumes  a  graut  to  him  of  sueh 
right.  1 

IX.  A  person  has  had  the  control  of  an  easement  for  a  long  time.  The 
graut  of  the  easement  is  presumed  from  llie  lapse  of  time.^ 

X.  No  claim  of  dowers  is  asserted  on  land  for  thirty-flve  years.  It  Is 
presumed  that  none  exists.^ 

XI.  A  person  has  occupied  certain  land  for  forty  j'ears.  This  raises  a 
presumption  of  the  ouster  of  a  co-tenant,  if  he  had  any  at  thebegiuuiug.* 

XII.  A  road  has  been  used  for  a  long  time.  A  dedication  of  it  to  the 
public  is  presumed.* 

In  case  III.  the  court  reviewed  the  Pennsylvania  cases  at 
length:  "Presumptions  arising  from  great  lapse  of  time 
and  non  claim,"  said  Agnew,  C.  J.,  "  are  admitted  sources 
of  evidence,  which  a  court  is  bound  to  submit  to  a  jury  as 
the  foundation  of  title  by  conveyances  long  since  lost  or 
destroyed.  This  is  stated  by  C.  J.  Tilghman  in  Kingston 
V.  Leslie^  There  the  absence  of  all  claim  for  years  on  the 
part  of  a  female  branch  of  a  family,  represented  by  Hon- 
oria  Hermann,  at  an  early  day,  was  hold  to  constitute  a 
ground  to  presume  that  her  title  had  been  vested  in  the 
male  branch.  Judge  Tilghman  remarked  :  '  I  do  not  know 
that  there  is  any  positive  rule  defining  the  time  necessary  to 
create  a  presumption  of  a  conveyance.  In  the  case  of 
easements  and  other  incorporeal  hereditaments,  which  do 
not  admit  of  actual  possession,  the  period  required  by  law 


1  Million  V.  Riley,  1  Dana,  359;  25  Am.  Dec.  149  (1833) ;  Arnold  v.  Ptevf>ns,  24  Pick. 
106;  35  Am.  Dec.  305  (1S39) ;  Mitchell  t;.  Walker,  2  Aik.  (Vt.)  26(3;  16  Am.  Dec.  710 
(1S27). 

2  Hanson  V.  McCue,  42  Cal.  303  (1S71.).  But  the  English  doctrine  of  a  presumption 
of  a  grant  or  contract  to  the  owner  of  land  having  an  unobstructed  llow  of  light  and 
air  to  his  windows  for  twenty  years  has  not  been  adopted  in  the  United  States. 
Pierre  v.  Fernald,  2G  Me.  436  (1847)  ;  I'arker  v.  Foote,  19  Wend.  309. 

8  Uoss  1".  Clore,  3  Dana,  189  (1S35) ;  and  see  Breckinridge  v.  Walters,  4  Dana,  627 
(1S36). 

*  Woolscy  f.  Morss,  19  Hun, 273  (1879). 

6  Itosser  r.  Bunn,  66  Ala.  89  (1380) ;  New  Orleans,  etc.,  R.  Co.  v.  Jones,  63  Ala.  48 
(1880).  So  a  right  of  way  is  presumed  from  lapse  of  time  (Lawton  r.  Rivers,  2  Mc- 
Cord  (S.  C.)  445;  13  Am.  Dec.  741  (1823) ;  State  r.  Bunker,  59  Me.  SC6  (1871) ;  Com.  v. 
Low,  13  Pick.  409  (1826)  )  and  a  right  of  water.  Campbell  v.  Smith.  3  Ilalst.  (X.  J.) 
140;  14Am.  Dec.  400  (1825) ;  Walkius  v.  Peck,  13  N.  il.  360;  40  Am.  Dec.  156  (1843). 

e  10  S.  &  K.  3S3. 


406  PKESUilPTIVE   EVIDEXCE.  [rULE    8G. 

for  a  bar  by  the  statute  of  limitations  is  usually  esteemed 
sufficient  ground  for  a  presumption.'  This  doctrine  of 
lapse  of  time  is  discussed  at  large  by  Justice  Rogers  in  Reed 
V.  Goodyear}  *  The  courts  of  law,'  he  remarks,  *  pay 
especial  attention  to  rights  acquired  by  length  of  time. 
Although  it  has  been  doubted  (he  says)  whether  a  legal 
prescription  exists  in  Pennsylvania,  yet  the  doctrine  of 
presumption  prevails  in  many  instances.'  He  quotes  and 
approves  the  language  of  Chief  Justice  Tilghman  in  Kings- 
ton V.  Leslie,  in  relation  to  presumptions  in  the  case  of 
easements  and  incorporeal  hereditaments,  and  adds  :  *  The 
rational  ground  for  a  presumption  is  where,  from  the  con- 
duct of  the  party,  you  must  suppose  an  abandonment  of 
his  right.'  Among  the  cases  ho  cites  one  directly  applica- 
ble to  a  fishery :  '  So  a  plaintiff  had  forty  years'  posses- 
sion of  a  piscatory ;  the  court  decreed  the  defendants  to 
surrender  and  release  their  title  to  the  game,  though  the 
surrender  made  by  the  defendant's  ancestor  was  defective.'  ^ 
Justice  Sergeant  said,  in  FouJk  v.  Broivn:^  <  "We  will  not 
encourage  the  laches  and  indolence  of  parties,  but  will  pre- 
sume, after  a  great  lapse  of  tmie,  some  compensation  or 
release  to  have  been  made.  Thus,  length  of  time  does 
not  operate  as  a  positive  bar,  but  as  furnishing  evidence 
that  the  demand  is  satisfied.  But  it  is  evidence  from  which, 
when  not  rebutted,  the  jury  is  bound  to  draw  a  conclusion, 
though  the  court  can  not.'  Again,  he  says:  '  The  rule  of 
presumption,  when  traced  to  its  foundation,  is  a  rule  of 
convenience  and  policy,  the  result  of  a  necessary  regard 
for  the  peace  and  security  of  society.  Justice  can  not 
be  satisfactorily  done  when  parties  and  witnesses  are 
dead,  vouchers  lost  or  thrown  away,  and  a  new  generation 
has  appeared  on  the  stage  of  life,  unacquainted  with  the 
afTairs  of  a  past  age,  and  often  regardless  of  them.  Papers 
which  our  predecessors  have  carefully  preserved  are  often 

1  17  S.  &  R.  352,  353. 

2  Penrose  v.  Trelawney,  cited  in  Vernon,  196. 

3  2  Watts,  214,  215. 


RULE    08.]         PRESUMPTIONS   FROM   POSSESSION.  407 

thrown  aside  or  retained  as  useless  by  their  successors.' 
Acts  of  ownership  over  incorporeal  hereditaments,  corre- 
sponding to  the  possession  of  corporeal,  are  deemed  a  foun- 
dation for  a  presumption.  *  The  execution  of  a  deed,' 
says  Gibson,  C.  J.,  'is  presumed  from  possession  in  con- 
formity to  it  for  thirty  years  ;  and  why  the  entire  existence 
of  a  deed  should  not  be  presumed  from  acts  of  ownership 
for  the  same  period,  which  are  equivalent  to  pos.scssion,  it 
would  not  be  easy  to  determine.'  ^  And  said  Black,  C.  J., 
in  Garrett  v.  Jackson :  ^  '  But  when  one  uses  an  easement 
whenever  he  sees  fit,  without  asking  leave  and  without  objec- 
tion, it  is  adverse,  and*  an  uninterrupted  enjoyment  for 
twenty-one  years  is  a  title  which  can  not  afterwards  bo  dis- 
puted. Such  enjoyment  without  evidence  to  explain  how 
it  began,  is  presumed  to  have  been  in  pursuance  of  a  full 
and  unqualified  grant.'  This  is  repeated  by  Justice  Wood- 
ward in  Pierce  v.  Cloud.^  See  his  remarks  also  in  Fox  v. 
TJtomjison,^  that  links  in  title  are  supplied  from  long  and 
unquestioned  assertion  of  title.  The  same  principles  are 
repeated  by  the  late  C.J.  Thompson  in  Warren  v.  Henhy? 
The  necessity  of  relaxing  the  rules  of  evidence  in  matters 
of  ancient  date  was  shown  in  Richards  v.  ElwelU^  a  case  of 
parol  bargain  and  sale  of  land,  and  possession  for  forty 
years.  The  court  below  held  the  party  to  the  same  strict- 
ness of  proof  required  in  a  recent  case.  It  was  then  said 
by  this  court:  *  If  the  rule  which  requires  proof  to  bring 
the  parties  face  to  face,  and  to  hear  them  make  the  bargain 
or  repeat  it,  and  to  state  all  its  terms  with  precision  and 
satisfaction,  is  not  to  be  relaxed  after  the  lapse  of  forty 
years,  when  shall  it  be?  After  a  lapse  of  fifty  or  sixty 
years  it  is  not  probable  that  any  witness  can  be  found  above 
ground  to  state  anything.  Shall  wo  wait  for  that  period 
before  we  begin  to  relax  ?  In  the  ordinary  course  of  human 
affairs  forty  years  are  almost  as  likely  to  carry  the  proofs 

1  Taylor  v.  Donghcrty,  1  W.  &  S.  327.  ♦  7  Casey,  174. 

»  8  IIaiTiSi,33.">.  6  12  Wright,  190. 

»  6  Wright,  102-114.  •  12  Wright,  61. 


408  PRESUMPTIVE  EVIDENCE.        [RULE  80. 

beyond  the  memory  of  living  witnesses.     It  is  contrary  to 
the  presumptions  raised  in  all  other  cases  —  presumptions 
which  are   used   to   cut  off  and  destroy   rights  and  titles 
founded  upon  records,  deeds,  wills,  and  the  most  solemn 
acts  of  men.     Based  upon  a  much  shorter  time  we  have  the 
presumption  of  a  deed,  grant,  release,  payment  of  money, 
abandonment  and  the  like.'     And  again:   *  There  is  a  time 
when  the  rules  of  evidence  must  bo  relaxed.     We  can  not 
summon  witnesses  from  the  grave,  rake  memory  from  its 
ashes,  or  give  freshness  and  vigor  to  the  dull  and  torpid 
brain.'     The   same   principles   are   held   in   the  following 
cases.     Turner  v.  Waterson,^  Hastings  v.  Wagner,^  Brock 
V.  Savaged     The  present  case  is  stronger  than  any  herein 
cited.     The   title   of    Joseph   Carter   had  its  inception  in 
179G-97,  and  its  full  completion  in  1805.     Living  witnesses 
on  the  trial  carried  back  his  actual  enjoyment  and  posses- 
sion of  this  fishery  upon  the  land  now  held  by  the  defend- 
ants, to  the  very  beginning  of  this  century.     From  that 
time  it  has  continued  without  challenge  or  denial  by  any  one 
claiming  title  under  Mary  Claxton  or  her  heirs.     That  of 
itself   is  sufficient  to  raise  a  presumption  of    any  deeds, 
grants  or  devolutions  by  descent  to  make  a  good  title  in 
Joseph  Carter  to  the  fishery  devised  to  David  Gaudulier. 
"VYhcn  to  this  we  add  the  proceedings  in  partition,  and  the 
recitals  in  the  deeds,  together  with  the  antecedent  lapse  of 
fifty  years  from  the  time  of  the  partition,  all  doubt  van- 
ishes as  to  the  devolution  of  the  title  by  regular  steps  to 
Joseph  Carter." 

In  case  VI.*  it  was  said :  *<  It  is  unnecessary  to  decide  to 
what  extent  and  under  what  circumstances  the  occupation 
of  a  stream  gives  to  the  first  occupant  a  property  in  the 
current,  so  as  to  prevent  the  owner  of  lands  above  him 
from  detaining,  diverting  or  exhausting  the  water  by  any 
erection,  not  leaving  sufficient  for  all  the  beneficial  pur- 
poses to  which  it  had  been  applied  below,  considered  of 

1  4  W.  &  S.  171.  2  10  Wright,  83. 

2  7  Id.  215.  4  10  S.  &  11.  C3 ;  13  Am.  Dec.  CIO  (1823). 


RULE  80.]      rnEsuMmoNS  fro:m  i'ossession.  409 

itself  and  without  regard  to  length  of  time,  because  in  this 
case  there  has  been  an  enjoyment  by  the  plaintifis,  and  those 
under  ■whom  they  claim,  of  this  mill,  in  a  particular  way 
and  to  an  ascertained  extent,  for  a  time  beyond  which  the 
memory  of  man  runneth  not  to  the  contrary.  And  if  a 
right  could  be  acquired  by  prescription,  this  mill,  from  its 
antiquity,  ought  to  have  all  the  privileges  of  an  ancient 
mill.  Its  existence  and  uninterrupted  use  may  be  traced 
as  far  back  as  the  first  settlement  of  the  country,  from  the 
time  most  probably  when  the  first  Blunston's  license  was 
granted,  and  when  it  Avas  a  frontier  settlement.  The  man 
who  first  erects  a  mill  in  a  new  country  is  considered  as  a 
public  benefactor,  and  no  subject  ought  to  be  treated  with 
more  tenderness,  no  possession  more  respected,  commenced 
as  it  was  with  the  assent  of  all  the  proprietors  of  the  adjoin- 
ing tracts,  and  enjoyed,  as  it  has  been,  without  any  inter- 
ruption and  with  the  approbation  of  all  for  near  a  century. 
And  if  it  were  necessary  to  presume  a  grant  of  all  the 
water  right  necessary  for  its  use,  I  would,  Avithout  hesita- 
tion, instruct  a  jury  to  presume  it.  For  the  continued 
acknowledgment,  nay,  the  continued  silence,  of  the  ene- 
mies of  the  right,  of  all  whose  interests  were  aflccted 
by  it,  afford  of  themselves  the  strongest  evidence  of  its 
legal  foundation,  though  nothing  were  found  in  any  deed 
respecting  it.  And  I  begin  to  think  that  the  country  has 
been  long  enough  settled  to  allow  of  the  time  necessary  to 
prove  a  prescription  ;  ^  and  even  prescription  presupposes 
a  grant  to  have  existed.  But  there  is  sufficient  time,  by 
analogy  to  the  statute  of  limitations,  to  protect  the  plain- 
tiffs in  their  full  enjoyment  of  the  whole  stream,  and  to 
sustain  this  action  for  the  disturbance  of  the  right.  It 
is  well  settled  that  if  there  has  been  an  uninterrupted 
exclusive  enjoyment,  above  twenty-one  years,  of  water  in 
any  particular  way,  this  affords  a  conclusive  prescription 
of  right  in  tlie  part}'  so  enjoying  it,  and  this  is  equal  to  a 
riglit  by  prescription." 

1  SCO  0  Mass.  90. 


410  PRESOIPTIVE  EVIDE^XE.  [rule  86. 

In  University  of  Vermont  v.  Reynolds,^  it  was  said:  "  In 
cases  of  prescription  the  possession  is  conclusive  as  to  the 
rinlit.  There  are  certain  other  cases  in  which  the  pre- 
sumption  is  not  considered  as  altogether  a  legal  inference, 
but  must  be  made  by  the  jury,  and  yet  the  court  advise  or 
(direct  the  jury  to  make  such  presumption.  The  enjoy- 
ment of  certain  incorporeal  hereditaments  for  the  period 
of  twenty  years,  if  adverse,  establishes  the  right  to  such 
enjoyment  founded  on  the  presumption  of  a  grant;  but 
this  possession  is  liable  to  be  explained.  The  enjoyment 
is,  therefore,  not  an  absolute  title,  but  may  be  rebutted. 
But  if  the  enjoyment  was  adverse,  it  affords  sufficient 
ground  for  such  presumption.  Chancellor  Kent  says  the 
later  English  authorities  give  to  this  presumption  the  most 
unshaken  stability,  and  they  say  it  is  conclusive  evidence 
of  right.  Judge  Story,  in  the  case  of  Tyler  v.  Wilhinsouy 
considers  it  in  this  light,  and  says  that  this  presumption 
may  go  to  the  extinguishment  of  a  right  in  various  ways, 
as  well  as  by  grant.  In  these  cases,  although  the  courts 
do  not  decide  upon  these  presumptions  as  purely  questions 
of  law,  yet  they  direct  the  jury  to  make  them  to  answer 
some  purposes  of  justice,  and  to  quiet  possessions.  These 
cases  differ  altogether  from  those  where  the  jury  are  to 
make  their  inferences  and  deductions  from  the  weight  of 
testimony  as  to  the  existence  or  loss  of  a  deed  or  grant. 
This  second  class  of  presumptions,  where  the  jury  are 
advised  to  make  them,  it  will  be  found,  apjoly  to  cor- 
poreal as  well  as  incorporeal  hereditaments.  Thus,  a 
grant  of  land  may  be  presumed,  as  well  as  a  grant  of  a 
fishery,  or  common,  or  way.  And  many  cases  of  this 
kind  are  to  be  found:  Jackson  v.  McCall^  Jackson  v. 
Murray,^  Jackson  v.  Hudson}  In  the  latter  case,  an  out- 
standing title,  founded  on  a  deed  or  release,  which  was  in 
evidence,  was  presumed  to  have  been  extnguished,  as  the 
title  had  never  been  asserted  or  claimed.     From  comparing 

1  3  Vt.  234  (1831).  5  7  Id.  5. 

2  10  Johns.  377 ;  6  Am.  Dec.  343.  *  3  Id.  375 ;  3  Am.  Dec.  500. 


RULE    8G.]         niESUMPTIOXS    FROM   TOSSESSIOX.  411 

these  cases  with  the  case  of  Doe  ex  dem.  Fcnicidc  v.  lieed^ 
it  may  bo  inferred  th:it  where  there  has  been  a  long  con- 
tinued possession  which  in  its  origin  was  or  would  have 
been  unlawful  unless  there  had  been  a  grant,  or  if  tlie 
origin  of  such  possession  can  not  be  accounted  for  without 
considering  it  either  as  unlawful,  or  also  lawful  by  virtue 
of  a  grant,  the  court  will  not  infer  that  the  possession  was 
unlawful,  but  direct  the  jury  to  presume  such  grant,  or 
anything  which  will  confirm  the  possession.  But  if  the 
original  possession  was  consistent  Avith  the  fact  of  there 
having  been  no  grant,  then,  although  the  possession  may 
have  been  ever  so  long,  it  will  be  left  to  the  jury  to  say 
whether  they  believe  such  grant  has  been  made,  and  they 
must  determine  according  to  the  weight  of  the  evidence." 
And  further,  in  the  same  case,^  it  was  said:  *'  The  measure 
of  the  law  is  ex  diuturnitate  temporis  omnia  prciesumuntur 
solemnitur  esse  acta?  An  act  of  Parliament,  a  grant 
from  the  crown,  a  deed,  and  in  fact  anything  which 
will  quiet  a  possession,  may  be  presumed  from  length  of 
time,  where  such  act,  grant,  or  deed  would  have  been  law- 
fully passed,  made  or  given  ;  and  this  presumption  is  said 
to  be  founded:  (1)  On  the  principle  that  the  law  will  not 
presume  any  man's  acts  to  be  illegal,  but  will  attribute 
such  possession  to  a  legal  origin:  (2)  that  the  failure  to 
interrupt  such  possession  by  those  who  had  the  right  arose 
from  their  knowledge  that  it  was  lawful  in  its  inception; 
and  (3)  upon  principles  of  public  policy  for  quieting  men 
in  their  possessions." 

In  Fiene  v.  FernaJd,'^  it  was  said:  <'  The  principle  upon 
which  the  presumption  of  grants  or  other  contracts  for  the 
security  of  rights  and  easements  is  made,  is  that  when  one 
person  knowingly  permits  another  for  a  long  course  of 
3'"ears,  and  without  molestation  or  interruption,  to  claim 
and  enjoy  rights,  easements,  or  servitudes  injurious  to  him 
or  his  estate,  it  would   be  against  man's  experience,  and 

1  5  B.  &  Aid.  232.  »  Co.  Lit.  6. 

a  3  Vt.  231 ;  23  Am.  Dec.  2-10  (1331).  *  2(5  Me,  436  (ISiT). 


412  PKESUMPTn'E    EVIDEXCE.  [llULE    86. 

contrary  to  his  motives  of  conduct,  to  account  for  it  so 
satisfactorily  in  any  other  manner,  as  to  presume  that  he 
had  authorized  it  by  some  grant  or  agreement.  When  it 
appeared  that  the  enjoyment  has  existed  by  the  consent 
or  license  of  the  person  who  "would  be  injured  by  it,  no 
such  presumption  can  be  made." 

In  Sirim'pjler  v.  Roberts,'^  Chief  Justice  Black,  in  con- 
sidering the  question  of  lapse  of  time  as  affecting  dis- 
putes as  to  land,  uses  this  language:  "  It  is  true  that  the 
transaction  which  creates  the  contest  between  these  parties 
is  entirely  too  old  to  be  investigated  now  with  the  slightest 
hope  of  ascertaining  the  truth.  It  is  impossible  for  us  to 
feel  any  confidence  in  the  evidence  which  can  be  furnished 
by  men  of  these  times  concerning  occurrences  so  remote. 
Fifty-two  years  went  round  between  the  time  when  the 
purchase-money  for  this  was  j)aid  and  the  bringing  of  the 
present  suit.  During  all  that  time  neither  Benson,  nor  his 
heirs,  nor  anybody  else  deriving  title  from  him,  made  any 
claim  to  the  land,  nor  paid  taxes  for  it,  nor  exercised  any 
act  of  ownership  over  it,  nor  manifested  the  least  sign 
of  consciousness  that  they  had  a  title  to  it.  We  are  now 
asked  to  determine  the  rights  of  the  parties,  on  such  facts 
as  can  be  fished  up  from  the  oblivion  of  more  than  half  a 
century.  Nearly  two  generations  have  lived  on  the  earth 
and  been  buried  in  its  bosom  since  this  business  was  trans- 
acted. Of  the  men  who  were  then  in  active  life  and 
capable  of  being  witnesses,  not  one  in  twenty  thousand  is 
now  living.  Written  documents  whose  production  might 
have  settled  this  dispute  instantly  have  been,  in  all  human 
probability,  destroyed  or  lost  or  thrown  away  as  useless. 
The  matter  belongs  to  a  past  age,  of  which  we  can  have  no 
knowledge  except  what  we  derive  from  history,  through 
whose  medium  we  can  dimly  discern  the  outline  of  great 
public  events,  but  all  that  pertains  to  men's  private  affairs 
is  wholly  invisible,  or  only  visible  in  such  a  sort  as  to  con- 

1  18  Pa.  St.  299  (1852). 


RULE    8G.]         niESU-AU^TIONS   TUOM   TOSSESSION.  413 

found  tho  judgment.     '  No    man,'   says   Mr.  Justice  Ser- 
geant,^ '  ought  to  be  i3crmittcd  to  lie  by,  while  his  rights 
can  be  fairly  investigated  and  justly  determined,  until  time 
has  involved  them  in  uncertainty  and  obscurity,  and  then 
ask  for  an  inquiry.'     For  such  reasons  as  these  it  is  that 
every  civilized  society  has  fixed  a  limited  time  within  which 
all  rights  must  be  prosecuted.     Where  this  is  not  done  by 
positive  enactment  of  the  Legislature,  the  judiciary  calls 
in  the  aid  of  presumption;   and  courts  of  equity,  though 
not  bound  by  the  Statutes  of  Limitation,  close  their  doors 
against  stale  demands  as   sternly  as  the   courts  of    law. 
Time  will  raise  presumptions  as  conclusive   for  or  against 
an  original  title  as  it  will  in  other  cases.     AVe  have  as  little 
power  to  read   the    ashes  of   burnt   papers,  or   call   dead 
witnesses   from  their  graves  to  testify  in  a  dispute  about 
business  transacted  l)y  the  land-jobbers  of  the  last  century, 
as  we  would  have  if  the  controversy  was  on  any  other  subject. 
It  is  accordingly  settled  that  the  non-return  of  a  survey 
for  some  years,  without  taking  possession  or  paying  tho 
surveyor's  fees,  is  an  abandonment  of  the  warrant.^    And 
even  when  the  negligence   is   imputable  to  the  officer,  a 
long  delay  will  defeat  the  warrantee's  title.'     The  title  of 
a  warrantee  is  presumed  to  have  been  conveyed,  where  no 
claim  is  made  under  it  for  a  long  time.*     A  sale  of  war- 
ranted land  for  taxes,  though  irregular  and  void  if  the 
warrant    holder    had    made   early   opposition,  becomes   a 
perfect  title  after  an  acquiescence  of  twenty-four  years.** 
Payment  of   taxes   for   twenty-one   years   is    presumptive 
evidence  of  a  convej'ance  from  the  warrantee.*     A  survey, 
unimpeached  for  twenty-one  years,  is  conclusively  l)elicved 
to  have  been  regular;^  and  that  even  w^here  there   is  an 
unexecuted  order  of  resurvey  by  the  board  of  property.^ 
In  short,  the  courts  of   this    State   seem   uniformly  (and 


1  2  Watts,  115.  <>  17  Ser.  &  R.  350. 

2  2  Pa.  St.  384.  «  1  W.  &  S.  324. 

s  4  Walts,  140.  •  2  Walts,  300;  IW.  &  S.  C8. 

*  2  liiun.  468.  «  7  Bair.  07. 


414  PEESUMPTIVE   EVIDEXCE.  [llULE    86. 

especially  of  late)  to  have  refused  to  go  back  more  than 
tweuty-one  years  to  settle  any  difficulty  about  the  issuing 
of  warrants  or  patents,  or  the  making  or  returning  of 
surveys,  or  the  payment  of  purchase-money  to  the  com- 
monwealth. These  questions,  like  others,  are  disposed  of 
according  to  the  legal  presumptions  which  arise  from  the 
lapse  of  time.  The  time  which  raises  a  presumption  which 
will  act  on  an  interest  in  land  is  twenty-one  years  ;  ^  and 
this  presumption  unrepelled  will  defeat  any  claim  that  is 
set  up  against  it." 

In  a  leading  case  Mr.  Justice  Story  said:  *'  The  doctrine 
as  to  presumption  of  grants  has  been  gone  into  largely  on 
the  argument,  and  the  general  correctness  of  the  reasoning 
is  not  denied.  There  is  no  difference  in  the  doctrine 
whether  the  grants  relate  to  corporeal  or  incorporeal  heredi- 
taments. A  grant  of  land  may  as  well  be  presumed  as  a 
grant  of  a  fishery  or  a  common  or  of  a  way.  Presumptions 
of  this  nature  are  adopted  from  the  general  infirmity  of 
human  nature,  the  difficulty  of  preserving  muniments  of 
title,  and  the  public  policy  of  supporting  long  and  uninter- 
rupted possessions.  They  are  founded  upon  the  considera- 
tion that  the  facts  are  such  as  could  not,  according  to  the 
ordinary  course  of  human  afiairs,  occur  unless  there  was  a 
transmutation  of  title  to,  or  an  admission  of  an  existing 
adverse  title  in,  the  party  in  possession."  ^  That  a  fence 
between  two  farms  has  been  kept  up  for  many  years  nearly 
in  the  same  place,  but  not  permanent  and  stationary  does 
not  raise  the  presumption  that  it  is  the  true  boundary.  It 
is  merely  evidence  of  an  agreement  and  acquiescence  in 
the  line  as  the  true  line.^  The  doctrine  of  adverse  posses- 
sion is  to  be  taken  strictly  and  not  to  be  made  out  by  infer- 
ence, but  by  clear  and  positive  proof.  Every  presumption 
is  in  favor  of  possession  in  subordination  to  the  title  of  the 


1  4  W.  &  S.  297. 

s  Story,  J.,  in  Ricard  v.  Williams,  7  Wheat.  109  (1822). 

»  Knight  V.  Coleman,  19  N.  H.  118;  i'J  Am.  Dec.  Ul  USIS). 


RULE    8G.]  rUESUMPTIONS    FROM   POSSESSION.  415 

true  owner. ^  If  a  person  enters  into  possession  of  land 
and  holds  it,  without  more,  the  presumption  is  he  claims 
title. 2 

In  Pennsylvania  it  has  been  held  that  possession  for  thirty 
years  under  a  survey  in  the  handwriting  of  a  deputy  sur- 
veyor, does  not  raise  a  presumption  that  the  survey  was 
made  by  proper  authority.^  "  Presumptions  from  length 
of  time  are  those  which  the  law  makes  without  regard  to 
what  may  have  been  the  actual  state  of  the  fact.  They  are 
conclusions  of  law,  not  of  fact ;  and  neither  the  court  nor 
the  jury  is  supposed  to  believe  what  they  take  to  be  conclu- 
sively established  as  true.  The  particular  circumstances  of 
possession  and  length  of  time  arc  to  be  determined  by  the 
jury,  but  the  inference  from  them  is  for  the  court.  This 
principle  of  decision  is  had  recourse  to  from  necessity, 
because,  from  the  remoteness  of  the  period  of  the  supposed 
transaction,  there  is  no  means  of  ascertaining  the  actual 
state  of  the  fact,  and  it  therefore  holds  in  judging  only  of 
things  which  belong  to  antiquity.  In  England,  a  grant  may 
be  presumed  against  the  crown ;  but  less  readily  than 
a<^ainst  an  individual.     In  this  State,  from  the  very  nature 

O 

of  our  land  titles,  the  reason  of  this  difference  holds  with 
additional  force.  In  other  countries,  holding  by  permission 
of  the  State,  is  a  rare  circumstance  ;  with  us,  holding  by 
permission  under  an  implied  contract  for  a  conveyance  to 
be  executed  at  an  indefinite  period  subsequently,  is  a  com- 
mon origin  of  title.  This  remark  is  applicable  in  a  greater 
or  less  degree  to  every  part  of  the  State  ;  but  it  is  obvious 
that  to  raise  this  kind  of  presumption,  a  greater  length  of 
time  w^ill  be  required,  where  the  population  is  sparse,  and  the 
possession  a  matter  of  little  notoriety,  than  where  the  popu- 
lation is  dense,  and  possession  of  a  nature  to  arre>t  the 

1  Jackson  v.  Sharp,  0  Johns.  163  (1S12) ;  Rung  r.  Shonenbcrscr,  2  Watts,  23;  2.3 
Am.  Dec.  05  (1833). 

»  Rung  f.  Shonenbcrger,  2  Watts,  23  (1?33).  A?  to  possession  of  written  instru- 
rceuts  as  eviilencc  of  title,  sec  Hill  r.  Heach,  12  N.  J.  (Eq.)  31  (185S). 

3  WUson  V.  Stouer.O  S.  &  R.  6i>l  (1S22). 


416  PEESCMPTIVE   EVIDENCE.  [rULE    86. 

general  attention.  In  Matler  v.  Tlie  Ministers  of  Trinily 
Church ,  the  land  which  was  the  subject  of  the  presumed  grant 
lay  in  the  neighborhood  of  Philadelphia,  the  oldest  and  most 
thickly  inhabited  part  of  the  State  ;  and  the  occupancy  of  it 
by  the  erection  of  a  church  on  it,  in  which  divine  service  was 
regularly  celebrated,  and  by  using  a  part  of  it  as  a  cemetery, 
was  of  a  nature  so  notorious  as  to  preclude  all  possibility 
of  its  having  been  unknown  to  the  proprietary  officers,  or 
to  the  government,  after  the  proprietary  estates  were 
assumed  by  the  commonwealth.  Under  these  circum- 
stances, it  was  held  that  a  grant  ought  to  be  presumed 
after  ninety  years.  At  the  time,  too,  when  this  possession 
commenced,  there  was  scarcely  anything  like  method  in  the 
issuing  of  rights  to  land  ;  after  the  application  system  was 
introduced,  the  business  of  the  land  office  was  conducted 
with  regularity,  and  the  locations  were  duly  registered  in 
the  proper  office.  To  this  may  be  added  that  the  location 
in  question,  if  in  fact  one  ever  existed,  was  for  land  in  a 
part  of  the  State  comparatively  new  and  thinly  inhabited, 
where  taking  possession  without  a  grant  was  a  common 
mode  of  laying  a  foundation  for  a  title ;  and  that  the  occu- 
l^ancy  in  this  particular  instance  was  attended  with  no  par- 
ticular circumstances  of  notoriety.  It  is  impossible  to  lay 
down  any  rule  on  the  subject  of  presumption  which  could 
be  safely  applied  to  anything  like  a  majority  of  the  cases 
that  may  arise  ;  these  must  be  judged  of  from  their  partic- 
ular circumstances.  As  a  standard  for  general  reference, 
the  ordinary  period  of  human  existence  might,  perhaps,  be 
found  more  convenient  in  practice,  and  thought  more  con- 
sistent with  the  reason  of  the  thing  than  any  other  that 
could  be  proposed ;  for  while  a  matter  may  be  susceptible 
of  proof  by  living  witnesses,  it  can  not  be  classed  with  the 
things  of  antiquity.  But  this  is  thrown  out  merely  by  way 
of  suggestion.  We  establish  no  general  rule  as  to  pre- 
sumptions against  the  commonwealth,  much  less  do  we 
pretend  to  determine  what  would  be  a  reasonable  period  as 


RULE    87.]  KESUMmONS   FROM   POSSESSION.  417 

against  an  individual.  Wc  are  of  opinion  the  period  of 
thirty  years  was  insufficient  to  raise  a  presumption  of  the 
existence  of  a  location,  or  any  other  authority  on  which 
Baird's  survey  might  have  been  made  ;  and  consequently 
that  the  survey  ought  not  to  have  gone  to  the  jury ;  and 
that  even  if  it  might  rightly  have  been  admitted,  instruct- 
ing the  jury  that  there  was  nothing  in  the  way  of  a 
presumption  in  favor  of  the  existence  of  a  location  was 
error." 

An  act  of  the  Legislature  may  be  presumed.^  Like  a 
grant  a  statute  may  bo  presumed,  notwithstanding  the  pub- 
lic records  show  no  trace  of  such  a  law.  But  this  presump- 
tion will  only  be  made  in  cases  where  the  Legislature  might 
have  acted,  and  does  not  arise  where  by  a  constitutional 
limitation  or  well  known  custom  it  could  not  or  would  not 
have  passed  such  a  law. 

RULE  87.  — Where    there    exists  no  power  to  make  a 
grant,  none  can  be  presumed  from  long  possession. 

Illustrations. 

I.  To  sustain  A.'s  title  it  is  necessary  to  presume  a  deed  from  the 
trustees  of  a  university  which  held  the  lands  in  question.  The  trustees 
never  had  power  to  convey  by  deed.    The  presumption  can  not  arise. ^ 

II.  To  sustain  B.'s  title  a  grant  from  the  State  to  his  ancestors  must 
be  presumed.  A  prior  grant  of  the  same  land  toC.'s  ancestors  is  shown. 
The  presumption  can  not  be  made  unless  it  is  proved  that  the  grant  to  C. 
had  been  revoked.* 

In  McCarty  v.  McCarty^^  the  question  being  as  to  the 

.  title  to  land,  a  deed  executed  by  a  feme  covert  was  relied 

on.     The  deed  was  valid  if  the  woman  was  married  at  the 


1  Lady  Stafford  v.  Llewellin,  Skin.  78;  Att'y-Gen.  i-.  Ewelime  Hospital,  17  Bcav. 
390;  Lopez  v.  Andrews,  Silan.  &  R.  329,  note;  McCarty  r.  ilcCarly, '2  Strobh.  (L.J  6; 
47  Am.  Dec.  6S.5  (1847). 

-  University  of  Vermont  v.  Reynold,  3  Vt.  234  (1S31). 

«  /./. 

*  2  Strobh  (L.)  6;  47  Am.  Dec.  685  (1847). 

27 


418  PEESmiPTIVE   EVIDENCE.  [llULE    87. 

time,  and  the  court  was  asked  after  twenty  year's  pos- 
session under  it  to  presume  a  statute  granting  a  divorce. 
In  that  State,  South  Carolina,  divorces  were  not  granted 
by  the  courts  and  had  always  been  refused  by  the  Legis- 
lature. The  court  refused  to  make  the  presumption. 
Said  the  court:  "Best,  in  his  treatise  on  Presumptions, 
tells  us  there  is  hardly  a  species  of  act  or  document,  pub- 
lic or  private,  that  will  not  be  presumed  in  support  of 
possession.  Even  acts  of  Parliament  may  be  thus  pre- 
sumed. Under  this  authority,  if  a  divorce  ever  had 
taken  place,  or  even  could  take  place  in  this  State,  I  would 
not  hesitate  to  say  that  an  act  for  that  purpose  ought 
to  be  presumed  in  this  case.  But,  as  was  said  in  Boyce  v. 
Owens,^  '  the  marriage  contract  in  this  State  is  regarded 
as  indissoluble  by  any  human  means.  Nothing  short  of  the 
actual  or  presumed  death  of  one  of  the  parties  can  have  the 
effect  of  discharffing  its  obli";ation  and  legal  effect.'  This 
was  my  deliberate  judgment,  pronounced  and  concurred  in 
by  my  brethren  of  the  Court  of  Appeals,  Johnson  and  Har- 
per, nearly  fifteen  years  ago.  It  has  received  the  entire 
sanction  and  acquiescence  of  the  bench,  the  bar,  the  Legisla- 
ture and  the  people,  ever  since.  The  most  distressing  cases, 
justifying  divorce  even  upon  Scriptural  grounds,  have  been 
again  and  again  presented  to  the  Legislature,  and  they  have 
uniformly  refused  to  annul  the  marriage  tie.  They  have 
nobly  adhered  to  the  injunction,  'Those  whom  God  has 
joined  together  let  not  man  put  asunder.'  The  working  of 
this  stern  policy  has  been  to  the  good  of  the  people  and  of 
the  State,  in  every  respect.  With  this  knowledge  before 
us,  can  an  act  granting  a  divorce  a  vinculo  matrimonii,  be 
presumed?  Mr.  Best,  in  his  second  chapter,  section  61, 
page  74,  under  the  maxim  :  *  Omnia  prmsumnntur  rite  esse 
acta,*  says  :  ♦  The  extent  to  which  courts  of  justice  will 
presume  in  support  of  acts,  depends  very  much  on  whether 
they  are  favored  or  not  by  law.'     This  being,  as  I  think, 

1 1  um,  10. 


RULE    88.]        rRESU^IPTIONS   FROM   TOSSESSION.  419 

the  true  notion  of  the  application  of  the  maxim,  I  am  clearly 
of  the  opinion  that  an  act  granting  a  divorce  can,  under  no 
circumstances,  be  presumed  from  lapse  of  time." 


KULE  88.  —  When  a  person  is  in  possession  of  property 
and  is  shown  entitled  to  the  beneficial  ounership 
thereof,  the  i>resumption  is  that  every  instrument  has 
been  executed,  and  every  thiujj  has  hccn  done  to 
render  his  title  legal.^ 

Illiistrations. 

I.  A  person  has  possession  of  a  deed.  This  raises  a  presumption  of 
its  legal  delivery  to  him.^ 

II.  A  partition  of  laud  is  presumed  from  possession  and  lapse  of 
time.' 

III.  A  long  possession  of  land  by  the  grantor  acquiesced  in  by  the 
grantee  is  shown.  The  presumption  is  that  it  was  for  a  breach  of  condi- 
tion.* 

IV.  A.  enters  into  possession  of  land  under  a  conveyance  from  B. 
A.'s.title  is  presumed  good  till  the  contrary  is  shown.* 

v.  A  voluntary  division  of  property  is  made  by  heirs  in  1830.  In  1860 
an  administration  will  be  presumed.'' 

VI.  A.  has  been  in  possession  of  land  for  twenty  years  under  an 
administration  deed.  The  presumption  is  that  all  the  legal  formalities 
of  the  sale  were  observed. ^ 

VII.  The  regularity  of  a  sale  under  a  power  is  presumed  from  lapse 
of  time. 8 

VIII.  A  sale  of  land  is  made  by  an  agent.  It  is  presumed  to  be  made 
under  a  power  which  is  lost  after  a  lapse  of  time.' 

1  So  recitals  In  deeds  are  presumptive  evidence  of  pcdijrree  (Little  r.  Palister,  i 
Me.  200  (1S26;)  and  of  the  deeds  referred  to  after  a  lapse  of  lime.  Fuller  r.  Saxiou, 
20  X.  J.  (L.)  Gl  (1813) ;  Den  v.  Gaston,  2.i  X.  J.  (L.)  G15  (1S5C). 

8  Roberts  r.  Swearingen,  8  Neb.  303  (1879);  Fairleo  r.  Fairleo,21  N.J.  (L.)  2S1 
(1848) ;  Berry  v.  Anderson,  22  Ind.  IIG  (l.'^W). 

3  Goodman  f .  ■\Vimor,  C-t  Ala.  UO  (IST'.t) ;  Baker  v.  Prcwitt,  Gl  Ala.  551  (1S79). 

*  OT.ricn  v.  Henry,  G  Ala.  787  (1S14). 

»  Pitney  v.  Leonard,  1  Paige  Ch.  401  (1S20). 

0  Desverges  v.  Desvcrgcs,  31  Ga.  753  (ISGl)  ;  Austin  r.  Bailey,  37  Tt.  219  (1*^04). 

'  Winkley  r.  Kaimc,  32  X.  H.  2GG  (IS.-.,')) ;  CoiC  r.  Deringer,  78  Pa.  St.  271  (.1875). 

8  Simson  v.  Eckstein,  22  C.al.  580  (18C3). 

»  Fornian  r.  Crutcher,  2  A.  K.Marsb.  70  (1S19) ;  Delabigarre  v.  Second  Minicipality, 
3  La.  Ann.  230  (1S4S). 


420  PEESUMTTIYE   EVIDENCE.  [rULE    89. 

RULE  S9.  —  And  the  possession  of  personal  property 
raises  a  presumption  of  title  in,  and  ownership  of,  the 
property  hy  the  possessor.^ 

Illustrations. 

I.  The  plaintiff  and  defendant  claimed  property  in  a  certain  slave. 
The  trial  judge  instructed  the  jury  that  if  they  found  certain  facts  the 
plaintiff  should  have  a  verdict,  "even  should  they  believe  from  the  evi- 
dence that  defendant  and  his  father  under  whom  he  claimed  held  pos- 
session of  the  slave,  *  *  *  for  twenty  years,  claiming  him  openly  as 
their  own  property."     Held,  erroneous.^ 

II.  A.  is  in  possession  of  a  vessel.  The  presumption  is  that  he  owns 
it.3 

III.  B.  has  certain  sheep  in  his  possession.  The  presumption  is  that 
they  are  his.* 

IV.  In  C.'s  hands  are  a  number  of  bonds.  The  presumption  is  that  he 
owns  them.' 

V.  A.  has  possession  of  a  note.  This  presumes  ownership  in  A.  of 
that  note.* 

VI.  A.  claiming  that  a  calf  in  the  possession  of  B.  is  his,  breaks  into 
B.'s  yard  and  takes  it.  The  presumption  is  that  it  is  B.'s  property  and 
the  burden  is  on  A.  to  show  his  right.' 

VII.  A.  ships  property  by  a  carrier.  The  presumption  is  that  A.  owns 
the  property.^ 

In  case  I.,  the  Alabama  cases  on  this  topic  were  reviewed 
at  length.     "  In  this  as  in  most  States  of  this  Union,"  said 


1  Entrikenw.  Brown,  30  Pa.  St.  364  (1859) ;  Phelps  v.  Cutler,  4  Gray,  137  (1S55) ;  Park 
r.  Harrison,  8  Humph.  413  (1847);  Burdge  v.  S  Jiith,  14  Gal.  380  (1859);  Goodwin  v. 
Garr,  8  C:il.  615  (1857)  ;  Hunt  v.  Utter,  15  Iiid.  318  (18G0) ;  Evans  v.  Board  of  Trustees, 
15  Ind.  319  (1800);  Robinoe  v.  Doe,  6  Blackf.  85  (1341);  Millay  v.  Butts,  35  Me.  139 
(1853)  ;Linscott  V.  Trask,  35  Me.  150  (1852).  "No  principle  is  more  fully  settled  by 
the  uniform  weight  of  authority  than  that  possession  is  prima/acie  evidence  of  title, 
and  that  upon  proof  of  that  fact  the  party  proving  it  is  entitled  to  vindicate  any 
violation  of  his  rights  thus  established.  Possession,  indeed,  may  be  considered  tho 
primitive  proof  of  title  and  the  natural  foundation  of  right."    Id. 

2  McArthurr.  Carrie,  32  Ala.  75  (1850). 

8  Stacy  V.  Graham,  3  Ducr,  444  (1854) ;  Bradley  r.  TheNew  World,  2  Cal.  373  (1852).  • 
*  Fish  I'.  Skut,  21  Barb.  333  (1856). 

6  Wickes  V.  Adirondack  Co.,  4  Thomp  &  O.250  (1874). 

«  Donncll  v.  Thompson,  13  Ala.  440  (1848) ;  Bush  v.  Seaton,  4  Ind.  522  (1853) ;  Kim- 
ball V.  Whitney,  15  Ind.  280  (18C0) ;  Squicr  v.  Stockton,  5  La.  Ann.  120  (1850). 

7  Cumberlcdge  v.  Cole,  44  Iowa,  181  (1876). 

8  Price  V.  PoweU,  3  N.  Y.  322  (1850;. 


RULE    89.]        rilESUMPTIO^^S   FKOM   TOSSESSIOX.  421 

the  court,  **  there  is  a  growing  disposition  to  fix  ca  period, 
beyond  which  human  transactions  shall  not  be  open  to 
judicial  investigation,  even  in  cases  for  which  no  statutory 
limitation  has  been  provided.  This  period  is  sometimes 
longer,  and  sometimes  shorter,  dependent  on  the  nature  of 
the  property,  and  the  character  of  the  transaction.  By 
common  consent,  twenty  years  have  been  agreed  upon,  as  a 
time  at  the  end  of  which  many  of  the  most  solemn  transac- 
tions will  be  presumed  to  be  settled  and  closed.^  The 
nature  of  this  presumption,  and  the  manner  of  drawing 
it,  arc  not,  in  the  mother  country,  and  in  the  several  States, 
the  same.-  The  precise  question  we  are  considering  does 
not  appear  to  have  been  before  considered  in  this  court. 
Kindred  questions  have  been  under  review.  In  liJiodes  v. 
Turner  and  Wife,^  an  effort  was  made  to  bring  an  admin- 
istrator to  a  settlement  after  a  great  lapse  of  time.  Chil- 
ton, J.,  employed  the  following  very  pointed  language: 
*  If  a  final  judgment  has  been  rendered,  according  to  the 
principles  of  the  common  law,  it  Avould  be  presumed  to 
have  been  paid  after  the  expiration  of  twenty  years ;  and  if 
the  parties  allow  this  period  to  elapse  without  taking  any 
steps  to  compel  a  settlement,  we  think  the  presumption  of 
payment  arises,  and  the  executor  or  administrator  should 
be  exempted  from  the  necessity  of  hunting  up  evidence  to 
prove  accounts  and  vouchers  which  ordinarily  enter  into 
such  settlement.'  In  Barnelt  v.  Torrance,'^  a  settlement 
had  been  attempted;  but  it  was  so  defective  that  under  our 
decisions,  it  could  not  be  regarded  as  a  final  settlement. 
More  than  twenty  years  afterwards  the  administrator  was 
cited  to  a  final  settlement,  and  he  was  sought  to  be  charged 
with  assets  for  which  he  had  never  accounted.  This  couil;, 
deciding  that  it  would  presume,  after  so  great  a  lapse  of 


1  See  2  story's  Equity,  sec.  10286. 

2  See,  on  this  subject,  Gowen  &  Hill's  notes  to  Phil.  Ev.  (Edition  by  Van  Cott), 
Part  I.,  pp.  536,451'),  457,464,  485  to  600,504-505;  yol.  5,  same  edition,  267;  Sims  v. 
Aughtery,  4  Strob.  Etj.  103. 

s  21  Ala.  210. 
«  23  Ala.  463. 


42^  PEESTBIPTIYE   EVIDENCE.  [kULE    89. 

time,  in  favor  of  the  correctness  of  that  settlement,  that  the 
necessary  notices  were  given,  and  that  the  parties  in  interest 
■were  present,  proceeded  to  remark,  that  *  a  decree,  ren- 
dered under  such  circumstances,  is  binding  on  the  parties  to 
it  until  it  is  reversed  in  the  proper  court.  *  *  *  The 
executors  can  not  now  be  called  upon  in  the  Probate  Court 
to  go  into  a  settlement  again,  when  all  parties  have  reposed 
on  that  already  made,  for  so  long  a  period  that  it  is  fair  to 
presume  that  much  of  the  proof  which  was  then  obtainable 
could  not  now  be  commanded.'  In  further  considering 
this  presumption,  the  court  added:  '  We  have  carefully  ex- 
amined the  jjround  on  which  the  rule  here  sugi^ested  is 
founded,  and  are  thoroughly  convinced  its  adoption  is 
essential  to  the  safety  and  repose  of  executors,  administra- 
tors, and  guardians,  and  to  the  advancement  of  the  ends  of 
common  justice.  It  is  strictly  analogous  to  the  rule  at 
common  law  in  relation  to  Judgments,  and  more  liberal 
than  the  rule  in  equity  with  respect  to  stale  claims.'  The 
case  of  GanWs  Admr.  v.  Phillips,^  was  a  suit  by  an 
administrator  de  bonis  non,  to  recover  a  slave,  the  title  to 
which,  it  was  alleged,  had  never  passed  out  of  the  estate. 
The  defendant,  and  those  under  whom  he  claimed,  had  been 
in  the  adverse  possession  of  the  property  for  more  than 
twenty  years.  The  record  of  the  Orphan's  Court  did  not 
show  that  the  person  named  as  executrix  of  the  will  had 
ever  qualified.  If  she  had  not  qualified  then  there  could 
have  been  no  assent  to  the  legacy  —  the  slave  was  still 
a  part  of  the  estate  of  the  testator,  and  the  plaintiff 
was  entitled  to  recover.  The  Circuit  Court  charged 
the  jury,  that  record  of  her  appointment  as  executrix 
would  be  the  highest  and  best  evidence  of  the  fact; 
but  if  the  proof  showed  to  their  satisfaction  that  the 
appointment  and  qualification  of  said  Elizabeth  Gantt  as 
executrix  had  been  duly  made,  and  that  in  the  lapse  of 
time  the  papers  and  records  of  the  apj)ointment  had  been 

1  23  Ala.  275. 


RULE    89.]        PEESUMI^TIOXS   FROM   TOSSESSIOX.  423 

lost  or  destroyed,  then  the  jury  might  presume  her  appoint- 
ment and  qualification.  The  latter  i)art  of  this  charge  was 
assigned  as  error.  This  court,  after  collating  and  com- 
menting on  many  decisions  of  other  courts,  said  :  '  Under 
the  circumstances,  we  consider  the  court  left  the  question 
to  the  jury  quite  as  favorably  as  the  plaintiff  was  author- 
ized to  demand.'  Thejudgment  was  affirmed.  Ju  Harvey  v. 
Thrope,^  a  similar  decision  was  made.^  It  will  be  observed, 
that  in  the  case  cited  from  our  own  reports  of  Barnett  v. 
Toi^ance,  the  presumption  drawn  by  the  court  in  favor  of 
the  recrularity  and  validity  of  the  decree  was  conclusive, 
not  a  mere  jifima  facie  intendment,  liable  to  be  overturned 
by  proof.  To  the  same  effect  is  the  principle  announced  in 
Rhodes  v.  Turner  and  Wife}  These  were  proceedings 
against  administrators,  for  wasting,  misapplying,  and  not 
accounting  for  assets  of  the  estates  they  represented.  Under 
the  authority  of  those  cases,  if  an  administrator  has  con- 
verted to  his  own  use,  or  privately  sold,  the  property  of  the 
estate,  and  has  not  been  proceeded  against  for  the  conver- 
sion until  the  expiration  of  twenty  years  after  the  time 
when  ho  should  have  settled  the  estate  he  is  forever  dis- 
charged, on  a  mere  presumption  of  law.  Suppose,  after 
that  time  an  administrator  cZe  bonis  non  should  be  appointed, 
and  should  sue  the  purchaser  for  property  which  the  ad- 
ministrator in  chief  had  sold  to  him  privately,  or  without 
an  order.  The  law  would  presume,  in  favor  of  the  faith- 
less administrator  in  chief,  that  he  had  accounted  and  set- 
tled for  the  property,  although  the  record  might  show 
nothing  on  the  subject.  If  the  purchaser,  under  these 
circumstances,  should  be  held  accountable  for  this  identical 
property,  would  not  the  law  present  a  strange  anomaly? 
Applying  these  principles  to  the  case  at  bar,  Mrs.  Cavin, 
in  1853,  when  this  suit  was  brought,  could  not,  under  our 
decisions,  be  made  to  account  for  the  conversion  or  devas- 
tavit of  these  slaves.     Can  Mr.  Arthur  be  made  to  account 

1  28  Ala.  250.  '  Lay  r.  Lawson,  23  Ala.  377.  ^  Supra. 


424  PRESUMPTIYE    EVIDENCE.  [i;ULE    89. 

for  them?  In  the  cases  of  Ganit  v.  PliilUps  and  Harvey 
V.  ThropCy  the  question,  whether  the  presumption  was  con- 
clusive or  not,  was  not  presented  by  the  record,  and  Avas 
not  discussed.  We  do  not  regard  them  as  authorities 
ao'ainst  the  principle  announced  in  lihodes  v.  Turner  and 
Wife  and  Barnett  v.  Torrance.^  There  is  an  able  discus- 
sion of  this  question  in  the  case  of  Sims  v.  Aughtery} 
That  case,  in  its  legal  bearings,  was  strikingly  like  the  pres- 
ent. The  circuit  decree  was  pronounced  by  Chancellor 
Dunkin,  who,  quoting  from  a  former  decision,  used  the 
lan<Tuage  that,  '  the  lapse  of  twenty  years  is  sufficient  to 
raise  the  presumption  of  almost  anything  that  is  necessary 
to  quiet  the  title  of  property.  If  there  had  been  no  will 
and  no  administration,  administration  would  nevertheless 
be  presumed,  and  that  defendants  had  acquired  a  title  from 
the  administrator.  *  *  *  After  a  possession  of  twenty- 
five  years,  the  court  will  presume  a  sale  by  the  executor  for 
the  puri)osc  of  paying  the  debts,  an  administrator  de  bonis 
non  after  Lyle's  death,  and  a  sale  by  such  administrator, 
or  almost  anything  else,  in  order  to  quiet  the  long  posses- 
sion.' In  the  Court  of  Appeals  the  opinion  was  delivered 
by  Chancellor  Dargan.  The  profession  is  referred  to  it  as 
an  elaborate  vindication  of  this  doctrine.  After  copying 
the  language  of  Chancellor  Dunkin,  last  above  quoted,  he 
adds :  '  This  is  strong  language,  but  not  stronger  than  is 
warranted  by  the  authorities,  or  demanded  by  a  stern  and 
imperative  public  policy.  In  regard  to  property  not  the 
product  of  manual  labor,  there  is,  perhaps,  no  title  extant 
in  any  part  of  the  world,  that  could  withstand  the  search- 
ing scrutiny  of  justice,  and  which  if  traced  to  its  origin, 
would  not  be  found  based  upon  fraud,  rapine,  spoliation, 
or  conquest.'  After  adverting  to  the  statutes  of  limita- 
tion as  one  means  of  giving  repose  to  stale  subjects  of  liti- 
gation, he  proceeds  to  remark :  'We  have  another  system 
of  rules,  founded  upon  what  is  called  the  doctrine  of  legal 

X  Supra.  *  4  Strob.  Eq.  103. 


RULE    80.]         PKESUMITIONS    FliOM   TOSSESSION.  425 

presumptions,  which  prevail  alike  in  courts  of  law  and 
equity,  and  which  arc  eminently  subservient  to  the  quieting 
of  titles,  and  the  prevention  of  litigation  arising  iq)on 
obscure  and  antiquated  transactions.  If  these  legal  pre- 
sumptions require  a  longer  period  than  statutory  bars  to 
acquire  force  and  effect,  they  are  more  general  in  their 
operation.  They  are  highly  conducive  to  the  peace  of 
society  and  the  happiness  of  families;  and  relieve  courts 
from  the  necessity  of  adjudicating  rights  so  obscured  by 
time  and  the  accidents  of  life,  that  the  attainment  of  truth 
and  justice  is  next  to  impossible.  *  *  «  These  legal 
presumptions,  by  which  conflicting  claims  and  titles  are  set 
at  rest,  I  have  endeavored  to  show  are  natural  and  neces- 
sary. They  spring  spontaneously  out  of  the  institutions 
and  relations  of  property.  As  to  the  precise  time  at  which 
they  arise,  each  independent  community  must  judge  for 
itself.  "We  have  adopted  the  law  of  the  mother  country. 
In  South  Carolina,  as  in  England,  by  the  lapse  of  twenty 
3'ears  without  admissions,  specialties  and  judgments  are  pre- 
sumed to  be  satisfied,  and  trusts  discharged.  Twenty  years' 
continued  possession  will  raise  the  presumption  of  a  grant 
from  the  State,  of  deeds,  and  wills,  administrations,  sales, 
partitions,  decrees,  and  (the  chancellor  has  said)  of  almost 
anything  that  may  be  necessary  to  the  quieting  a  title,  which 
no  one  has  disturbed  during  all  that  period.'  ^  In  ex- 
amining the  numerous  authorities  on  this  question,  to  be 
found  in  the  reported  cases  of  trials  at  law,  the  profession 
will  frequently  encounter  the  declaration,  that  from  this 
lapse  of  time,  the  jury  are  authorized  to  draw  the  pre- 
sumption which  we  have  been  considering.  By  this  we 
understand,  that  the  question  is  at  all  times  one  for  the 
jurv  ;  a  presumption  they  may  draw,  but  there  are  no  rules 
which  irovcrnthcm  in  such  cases.  Such  was  the  instruction 
of  the  Circuit  Court  in  the  case  of   Gantt  v.  PhiUips^  and 

1  See,  also,  tUo  case  of  Williamson  v.  Williamson,  1  Johns.  Ch.  4SS,  492-493. 


426  rREsmiPTiYE  evidence.  [rule  89. 

in  the  case  of  Harvey  v.  Thrope}  Now,  with  all  due 
deference,  we  confess  ourselves  unable  to  perceive  any 
solid  reason  on  which  to  rest  such  a  principle.  We 
think  it  is  at  war  wdth  the  analogies  of  the  law,  and 
with  the  theory  of  jury  trials.  Juries  are  authorized  to 
l)ronounce  on  the  credibility  of  witnesses;  to  determine 
disputed  facts ;  to  draw  conclusions  from  doubtful  and  con- 
tradictory premises ;  and  to  admeasure  damages  when  the 
law  has  afforded  no  standard.  We  do  not  say  these  are  the 
only  functions  of  a  jury,  but  they  are  the  controlling  ones. 
Whenever  the  facts  of  the  case  are  clear  and  uncontro verted, 
the  rights  of  parties  are,  or  should  be,  fixed  and  uniform. 
When  there  remains  no  fact  to  be  found  or  conclusion  to  be 
drawn  from  contested  and  indeterminate  premises,  there  is 
no  use  for  a  jury,  for  the  law  determines  the  rights  of  the 
l^arties.  This  principle  is  absolutely  necessary,  as  the  basis 
of  a  uniform  system  of  jurisprudence.  So,  in  cases  where 
a  jury  trial  is  necessary,  every  proposition  which  stands 
forth  clear  and  undisputed,  and  which  rests  on  no  inference 
to  be  drawn  from  disputable  or  controverted  premises,  is, 
or  ought  to  be,  a  question  of  law.  On  this  principle  rests 
all  our  presumptions  of  law.  It  is  not  our  purpose  to  deny. 
to  the  jury  the  right  and  duty  of  determining  whether  in 
fact  the  twenty  years  have  elapsed.  That  fact  being  found, 
however,  and  there  being  no  contravailing  proof,  what  rea- 
son can  exist  for  leaving  it  to  the  discretion,  possibly 
caprice,  of  the  body,  whether  they  will  draw  the  desired 
conclusion?  There  is  one  naked  fact,  to  wit,  acquiescence 
for  twenty  years.  There  can  be  no  reason  for  indulging 
the  presumption  in  one  case  which  does  not  exist  in  all 
others.  Chancellors  invariably  draw  the  presumption 
from  this  one  fact,  and  we  think  a  rule  equally  uni- 
form should  prevail  in  courts  of  law.  To  lay  down  a 
different  rule,  will  be  to  invite  a  contest  and  jury  trial  in 
every  case  thus  circumstanced.     The  circumstances  of  each 

1  Supra. 


RULE    80,]         rRESUMFTIOXS   FROM   ROSSESSION.  427 

case  will  be  appealed  to  by  opposing  counsel,  in  the  hope 
that  they  severally  may  impress  the  jury  with  the  belief 
that  it  is  their  duty  in  the  particular  case  to  indulge  or 
withhold  the  presumption,  as  the  one  or  other  result  will 
promote  their  several  interests.  "We  are  unwilling  to  de- 
clare a  rule,  the  result  of  which  may  be  to  tempt  juries 
from  their  propriety,  to  multiply  litigation,  and  to  increase 
the  uncertainty  which  must  always  attend  the  administra- 
tion of  the  law.  We  do  not  wish  to  be  understood  as  say- 
ing that  this  presumption  is  always  conclusive.  In  the 
first  instance,  perhaps,  it  never  is  so.  In  cases  like  the 
present,  however,  we  hold  that  a  2)ri7na  facie  presumption 
is  raised,  whenever  there  is  satisfactory  proof  of  twenty 
years'  uninterrupted,  adverse  enjoyment  and  possession. 
Speaking  of  this  presumption,  ]\Ir,  Starkie  says  (edition 
of  182G,  vol.  3,  p.  1214),  '  it  gives  to  the  evidence  a  techni- 
cal efficacy  beyond  its  simple  force  and  operation.'  On 
page  1224,  he  says,  this  is  not  a  direct  and  immediate  in- 
ference to  be  made  by  the  courts  [of  law]  ;  yet  '  the  court 
will  under  certain  circumstances,  direct  a  jury  to  presume 
an  outstanding  term  to  have  been  surrendered  by  the  trus- 
tee.' To  the  same  effect  is  Va^idicJc  v.  Van  Buren.^ 
This  prima  facie  case  may,  of  course  be  overturned.  It 
can  not  be  done  by  proving  that  the  title  was,  in  its  incep- 
tion, defective.  Proof  to  be  effectual  for  this  purpose, 
must  be  addressed  to  the  character  of  the  plaintiff  's  pos- 
session, either  in  its  acquisition  or  use;  must  tend  to  show 
possession  is  not  inconsistent  with  the  plaintiff  's  right ;  or 
that  some  other  excuse  independent  of  original  defect  of 


1  1  Caines  Rep.  34.  Sec  on  this  subject  Cow.  &  Hill's  Xotes  to  Phil.  Ev.  (ed.  by 
Van  Cott),  Part  1,  i)p.  485,  et  Beq.;  2  Wend.  Black.  206,  note  10;  Beck  on  Presump- 
tions, lU;  Smithpcter  r.  Ison,  4  Rich.  Law,  203;  3  Bouv.  Bacon,  621;  Jackson  v. 
MoCall,  10  Johns.  377;  1  Greenlf.  Ev.,  sec.  46;  Warren  r.  Webb,  2  Strange,  1129;  Rex 
r.  Carpenter,  2  Show.  47;  Trotter  v.  Harris,  2  Younge  &Jcrvis,  235;  Beall  r.  Lynn,  9 
Harr.  r.  Johns.  336,  353,  361;  Ld  Pclham  r.  Pickingill,  1  T.  R.  3S1;  Doe  v.  Ireland,  11 
East,  280,  284;  Goodtillo  r.  Baldwin,  Id.  28S ;  Penwarden  v.  Ching,  1  Moody  & 
Mai.  400;  Rex  r.  Long  Buckley,  7  East,  4o;  Mayor  of  Kingston  r.  Ilerwer,  Cowp. 
102, 110;  Stodder  r.  Powell,  1  Stew.  1S7 ;  1  Oreenl.  Cruise,  415, 416;  Rustard  f.  Gates, 
4  Dana,  430;  McPherson  v.  Cuuliff,  11  S.  &  R.  422,  4S2. 


428  PRESUMPTIVE   EVIDEXCE.  [rULE    89. 

title,  must  be  given  for  the  seeming  long  acquiescence. 
"We  cannot  now  be  more  definite.  The  record  before  us 
contains  no  excuse  for  the  delay;  and  in  such  case,  the 
2)rhna  facie  presumption  becomes  conclusive.  It  results 
from  this,  that  the  charge  of  the  circuit  court  was  errone- 
ous." 

In  case II.  it  was  said:  "The  rule  of  law  that  possession 
of  property  is  prima  facie  evidence  of  ownership  is  uniform 
in  its  application.  The  question  of  the  ownership  of  a 
vessel  forms  no  exception.  In  this  case  the  vessel  was  in 
the  possession  and  under  the  control  of  the  master." 

In  case  VI.  it  was  said :  *'  Proof  of  possession  is  presump- 
tive proof  of  ownership,  The  plaintifl'  made  a  j^rima  facie 
case  by  proof  of  possession.  The  presumption  was  not 
overcome  by  proof  that  the  defendant  afterwards  acquired 
possession,  because  it  appeared  that  he  broke  the  plaintiff's 
enclosure,  and  took  the  calf  from  the  plaintiff  's  possession. 
He  could  acquire  no  legal  advantage  thereby.  Nor  was 
the  presumption  in  favor  of  the  plaintiff  overcome  by  the 
evidence  as  to  the  ownership  prior  to  the  taking  of  posses- 
sion by  the  plaintiff,  because  the  court  finds  that  the  evi- 
dence on  the  point  is  balanced." 

In  Moore  v.  IJawJcs,^  it  was  said:  *«  "With  respect  to  per- 
sonal chattels,  possession  alone  is  presumptive  evidence  of 
property,  and  with  nothing  to  oppose  it,  is  sufficient;  and 
when  the  possession  is  accompanied  with  the  exercise  of 
complete  acts  of  ownership  for  a  length  of  time,  it  is  strong 
evidence  for  the  consideration  of  the  jury,  and  requires  sat- 
isfactory explanation.  It  is  laid  down  in  a  late  work,  that 
if  one  should  be  in  possession  of  a  horse,  which  once  belonged 
to  his  neighbor,  for  a  considerable  time,  using  him  as 
his  own,  without  any  claim  from  his  neighbor,  it  would  be 
presumed  there  had  been  a  sale,  unless  such  neighbor  could 
prove  the  contrary.     And  where  a  son  is  in  possession  of 

1  2Aik.  (Vt.)  390  (1827). 


RULE    89.]        PKESUaiPTIONS   FROM  POSSESSION.  420 

property  delivered  him  by  his  father  to  use  gratuitously, 
although  the  relation  between  the  parties  may  sufficiently 
explain  the  possession,  and  remove  any  presumption  of 
fraud  or  ownership  arising  from  that  alone,  yet  it  is  said 
that  if  the  father  permits  the  son  to  sell  and  replace  such 
property,  or  to  exchange  and  manage  it  as  though  it  was 
his  own,  this  will  be  evidence  that  the  loan  was  a  mere 
cover  for  a  gift  with  intent  to  deceive  and  defraud  others."  ^ 

1  1  Swift's  Dig.  273.  766. 


PART  V. 


PEESUMPTIONS  IN  CRIMINAL  CASES. 


(431) 


CIIAPTEE    XIX. 

THE  PRESmiPTIONS  IN  FAVOR  OF  INNOCENCE. 

RULiE  90.  —  The  law  presumes  the  innocence  of  a  per- 
son charged  with  crime  until  the  contrary  is  proved 
beyond  a  reasonable  doubt. ^ 

Illustrations. 

I.  A  man  and  woman  live  and  cohabit  toEfether.  The  presumption  ia 
that  they  are  married. 2 

1  People  V.  Thayer,  1  Park.  C.  C.  595  flS2'5) ;  State  v.  Fugate,  27  Mo.  635 
(1858) ;  State  v.  Mosier,  25  Conn.  40  (1856) ;  Wasdeu  v.  State,  18  Ga.  264  (1855).  So  a 
forfeiture  will  not  be  presumed.    State  v.  Atkinson,  24  Vt.  448  (1852). 

"  THREE  TAMOUS  THIXOS  IN  LAW." 
"  The  presumption  0/ innocence.  It  is  greatly  to  be  regretted  that  the  so-called 
presuniptiou  of  innocence  in  favor  of  the  prisoner  at  tlie  bar  is  a  ))retense,  a  delu- 
sion, an  empty  sound.  It  ought  not  so  to  be,  but  it  is.  Rufus  Choate  said  that 
'this  presumption  is  not  a  mere  phrase  without  meaning;'  that  'it  is  in 
the  nature  of  evidence  for  the  defendant ; '  that  '  it  is  as  irresistible  as  the  heavens 
till  overcome ; '  that  '  it  hovers  over  the  prisoner  as  a  guardian  angel  throughout  the 
trial;'  that  'it  goes  with  every  part  and  parcel  of  the  evidence;'  that  'it  is  equal 
to  one  witness.'  That  is  just  what  it  should  be,  but  just  what  is  not.  Pi-acti- 
cally  it  is  of  no  avail  whatever  in  the  trial.  The  jury  tread  it  under  foot ;  the  judge 
the  same  moment  he  admits  it  in  theory,  forgets  it  in  argument.  It  is  a  dead  letter. 
Kay,  so  far  from  being  merely  inoperative,  it  is  not  hazardous  to  say  that  in  the  trial 
the  presumpticm  is  reversed.  By  court  and  jury,  by  prosecution,  police,  and  by  the 
public  the  accused  is  presumed  guilty.  Let  every  one,  as  he  looks  upon  a  prisoner 
in  the  dock,  carefully  inquire  of  himself  and  answer  if  this  be  not  so.  The  reasoa 
is  plain.  The  wliole  course  of  criminal  procedure,  from  inception  to  close,  is  de- 
signed to  shut  out  presumptions  of  innocence  and  invite  prcsum))tions  of  guilt. 
The  secrecy  of  complaint-making  at  the  mngistrate's  office,  the  mysterious  inquisi- 
tion of  the  grand  jury  room,  the  jiublicity  of  the  arrest,  the  commitment  to  the 
lock-up,  the  demand  of  bail,  the  delay  of  trial,  the  enforced  silence  of  defense  till 
prosecution  has  done  its  worst,  are  all  so  manystejis  and  strokes  to  blacken  the 
accused  before  ho  is  permitted  to  open  his  moulh  with  a  syllable  of  evidence  to 
break  the  force  of  the  damaging  array  of  circumstances.  To  suppose  that  the  pre- 
8U!iiption  of  innocence,  which  unbiased  nature  prompts,  is  not  before  this  time 
choked  and  strangled  to  death  is  an  absurdity  too  gross  to  dispute.  The  treatment 
Itself  of  the  prisoner  negatives  the  presumption.  If  lie  is  presumed  innocent,  whv 
is  he  manacled?  why  is  ho  put  in  jail?  why  is  he  let  out  only  on  bail?  why,  when  ho 
is  put  on  trial,  is  he  put  in  the  dock?  why  docs  he  not  have  place  with  the  by-stand- 
ere,  who  are  simply  presumed  innocent?    The  'presumption,'  in  the  preaence  of 

«  Post  V.  Post,  70  111.  48t  (1873) ;  Cope  v.  Pearce,  7  Gill  (Md.),  263  (1948). 

28  (  433  ) 


434  PKESU3IPTIVE   EVIDENCE.  [UULE    90. 

II.  In  IS-iO,  marriages  between  whites  and  negro  slaves  are  prohibited 
under  penalty  of  line  and  imprisonment.  It  is  proved  that  a  negro 
slave  and  a  white  woman  lived  and  cohabited  together.  The  presump- 
tion is  that  the  relation  was  that  of  concubinage,  and  not  of  marriage.^ 

exich  things,  is  a  contradiction  of  terms.  IIow  ca-n  a  person  be  presumed  innocent 
wlio  is  presumably  guilty?  The  fact  that  lie  is  restrained  of  his  liberty  presumes 
ruilt.  There  is  no  other  construction  to  be  placed  ou  the  restraint.  II  uuiau  nature 
is  not  capable  of  any  other.  Yet  human  nature  ought  to  presume  innocence  till  the 
contrary  is  proved.  What  then?  Shall  the  mode  or  order  of  proceeding  against 
Buspected  violators  of  law  be  so  modilied  as  to  allow  human  nature  to  be  thus  gen- 
erous? Can  it  be  so  modified?  Tlie  object  to  be  attained  is  worthy  a  good  deal  of 
experiment  at  the  risk  of  a  good  deal  of  havoc  of  old  time  forms  and  i)rocecding3. 

"  The  reasonable  doubt.  It  would  be  a  happy  thing  for  the  triers  of  criminal  causes 
if  somebody  should  succeed  in  defining  a  '  reasonable  doubt.'  A  great  felicity  it 
would  be  if  only  some  one  should  portray  a  reasonable  doubt  beyowd  a  reasonable 
doubt.  Nothing  is  more  glibly  spoken  of  than  this  doubt,  yet  there  is  nothing  more 
doubtful.  Lawyers  roll  it  as  a  morsel  under  their  tongues  and  roll  it  off  at  juries 
and  justices  as  if  it  were  a  thing  to  be  apprehended  with  as  much  certainty  as  a 
stark  naked  fact.  But  what  a  reasonable  doubt  is  it  is  duubtful  whether  they  stop  to 
think,  or,  stopping,  form  any  but  a  very  doubtful  opinion.  Should  it  be  a  matter 
ot  opinion  at  iiU?  Should  it  not  boa  matter  of  conviction?  Sliould  not  everyone 
who  is  to  inquire  whether  he  has  it,  have  as  absolute  an  idea  of  what  a  reasonable 
doubt  is  as  he  has  of  any  other  independent  fact  in  the  case?  If  the  case  is  to  turn 
on  the  matter  of  reasonable  doubt,  how  can  it  turn  aright,  unless  the  turning-point 

be  ascertained  and  fixed  beyond  a  reas beyond  all  question?    The  learning 

of  the  books  on  this  subject  is  vast.  It  begins  with  the  Bible  — that  is  to  say,  the 
book  WTitcrs  make  it  begin  there,  though  it  does  not  appear  that  the  inspired  writ- 
ers were  sufficiently  inspired  to  hit  upon  the  favorite  expression.  Its  equivalent 
law-givers  since  the  time  of  Moses,  find  in  the  Mosaic  provision,  which  forbade  the 
death  penalty  till  the  crime  'be  told  thee,  and  thou  hast  heard  of  it,  and  inquired 
diligently,  and,  behold,  it  to  be  true,  and  the  thing  certain'  (Ueut.  xvii:  i).  This  is 
said  to  be  the  amplification  of  Moses  as  definerof  the  doubt.  Modern  authorities 
do  not  seem  to  have  done  much  better.  But  it  is  not  because  they  have  not  tried. 
One  author  says  that  '  the  i)crsuasion  of  guilt  ought  to  amount  to  such  a  moral  cer- 
tainty as  convinces  the  minds  of  reasonable  men  beyond  all  reasonable  doubt,'  But 
what  is  the  reasonable  doubt?  Another  says  that 'a  reasonable  doubt  may  be  de- 
scribed by  saying  that  all  reasonable  hesitation  in  the  mind  of  the  triers,  respecting 
the  truth  of  the  hypothesis  attempted  to  be  sustained,  must  be  removed  by  the  proof.' 
Another  describes  it  '  as  that  degree  of  certainty  upon  which  the  jurors  would  act  in 
their  own  grave  and  important  concerns.'  This  seems  to  apiiroach  nearer  a  solu- 
tion, and  resembles  a  definition  once  heard  in  a  charge  to  a  jury.  The  judge  mIio 
gave  it  is  admittedly  one  of  the  ablest  and  clearest-headed  jurists  who  ever  tat  upon 
the  bench.  He  is  t'.ie  man  whom  Rufus  Choate  called  '  one  of  the  ablest  minds  of 
the  State.'  As  near  as  memory  serves,  hiswords  were  as  follows:  'Just  what  a 
reasonable  doubt  is,  gentlemen,  it  is  not  quite  easy  to  say;  but  you  arc  practical 
men,  and  I  instruct  you  that  you  should  be  satisfied  of  the  defendant's  guilt,  to  that 
degree  of  certainty  which  you  would  require  for  your  guidance  in  acting  decisively 
in  any  grave  matter  of  your  own  within  such  time  as  is  ordinarily  given  to  a  juiy 
for  deliberation  in  the  case."  Allowing  this  to  be  right  instruction,  is  it  not  prob- 
able that  many,  very  many,  are  convicted  without  proof  beyond  a  reasonable  doubt. 

"  The  burden  of  proof .  This  is  another  expression  that  should  have  a  more  fixed 
meaning.  Like  all  other  expressions  used  familiarly  in  discourse,  it  loses  force  and 
weight  by  its  commonness.  It  ))lay8  a  windy,  wordy  part  in  all  argumentation  on 
questions  of  fact.    To  the  mind  of  the  average  hearer  it  assumes  the  likeness  of  a 

1  Armstrong  v.  Hodges,  2  B.  Mon.  (Ky.)  70  (1841). 


KULE    90.]       rUESUMPTIONS    IX   FAVOR    OF    INNOCENXE.         435 

III.  M.  was  Indicted  for  stealing:  a  kep;  of  beer;  all  that  was  proved 
was  that  M.  had  taken  a  keg  of  beer  from  a  store.  This  is  iusuflkieutto 
raise  a  presumption  that  M.  Intended  to  steal  it.' 

IV.  A  husband  and  wife  separate,  and  the  former  lives  and  cohabits 
with  another  woman.  The  presumption  is  that  he  obtained  a  divorce 
from  his  first  wife,  and  she  may  legally  marry  again. ^ 

V.  A.  marries  B.,  having  a  husband,  C,  living.  It  being  proved  that 
C.  Bubsiquently  died,  the  presumption  is  that  A.  and  B.  were  married 
again  after  liis  death,  if  they  are  proved  to  have  continued  cohabitation.^ 

VI.  A.,  being  under  the  legal  age,  contracts  a  marriage  with  B.;  the 
marriage  is  void.  When  A.  came  of  age,  B.  was  on  her  death  bed  and 
died  three  weeks  thereafter.  During  that  time  they  continued  to  live 
to:ethorand  to  be  recognized  as  husband  and  wife.  /ieW,  that  a  mar- 
riage would  be  presumed  to  have  taken  place  after  A.  came  of  age.* 

VII.  To  sustain  a  plea  of  coverture,  a  defendant  swore  that  she  was 
married  at  a  certain  chapel  on  a  certain  day,  and  afterwards  cohabited 
with  hor  husband;  the  law  required  that  to  render  a  marriage  valid  the 
chapel  in  which  it  was  solemnized  should  be  licensed.  Held,  that  the 
presumption  was  that  the  chapel  in  this  ease  was  duly  licensed.* 

harmless  sort  of  puff  ball,  tossed  hither  and  thither  by  cunnin?  lawyers  to  mystify 
the  c;ise  ami  the  hearer,  and,  for  about  ihe  same  reason,  llie  trier  comes  to  tieat  It 
as  nut  of  mucli  account.  How  often  does  the  juror  give  it  serious  thought  tliat  tlio 
plain  tiff  is  weighted  with  a  burden  wliich  the  defendant  is  not  —  that  having  asserted 
a  thing  he  should  sliow  it  to  be  fact  by  a  preponderance  of  the  evidence?  JIany 
reason  that  assertion  must  be  true,  otherwise  it  would  not  have  been  asserted. 
Some  regard  ipse  f/iji<  demonstration.  They  look  upon  denial  as  despair.  To  them, 
he  who  denies  seems  to  be  in  a  llx.  They  never  get  the  better  of  the  first  impres- 
sion of  the  first  word.  But  the  old  Koman  rule  — the  proof  devolves  on  him  who 
declares  not  on  him  who  denies  —  is  the  American  rule,  and  there  is  no  rule  that 
ought  to  be  more  rigidly  enforced  in  court  or  out  of  court.  A  righteous  rendering 
of  it  would  be,  let  him  who  can  not  make  good  wliat  he  would  assert,  hold  his 
peace  or  ^lold  forth  at  his  per.l.  Then  there  would  be  less  holding  forth.  There 
is  too  much  holding  forth.  Too  miicli  there  is  of  heedless,  wanton  allegation  and 
accusation  of  a  legal  sort  and  of  all  sorts.  Rights  arc  rated  too  low.  Kcputatiou 
is  reckimed  too  cheap.  It  is  |iainfiil  to  relate  that  the  law  holds  reputation  in 
very  cheap  estimation.  Criminal  procedure  eveiy  where  is  a  standing  invitation 
to  att:ick  it  at  tlio  public  expense,  and  civil  procedure  affords  no  adequate  remedy 
wlicn  it  IS  attacked  and  damaged.  A  suit  for  libel  or  slander,  however  well  grounded 
in  law,  generally  leaves  the  aggrieved  man  worse  off  than  when  ho  invoked  the 
law's  aid.  Before  he  can  get  a  trial  the  slander  has  done  its  worst,  and  before  he 
can  get  a  verdict  he  his  spent  thrice  the  money  the  law  gives  him  to  right  Ihe 
wrong  he  has  suffered."  From  Ten  Years  a  Police  Court  Judge.  New  York: 
Funk  &  Wingalls,  1884. 

1  Mason  v.  State,  .32  Ark.  239  (1877). 

a  Dlanchard  v.  Lambert,  Ai  Iowa,  228  (1876). 

»  Blanchard  r.  Lambert,  43  Iowa,  228  (137G) ;  Y'at  is  t».  Ilouston,  3  Tex.  433  (1848) ; 
Carroll  v.  Carroll,  23  Tex.  731  (ls:)S);  Fenton  r.  Ileed.  4  Johns.  (X.  Y.)  51;  Uose  v. 
Clark,  8  Paige  (X.  Y.)  57.'>;  Jackson  r.  Claw,  18  Johns.  (N.  Y.)  347. 

<  Wilkinson  v.  rayne,  4  T.  U.  403  (1701). 

6  Sichel  r.  Lambert,  15  C.  B.  (.v.  S.)  781  (1864). 


43G  PEESU3IPTIVE   EYIDEXCE.  [rULE    90. 

VIII.  In  an  action  by  A.  against  B.,  A.  alleged  that  B.,  who  had  char- 
tered his  ship,  had  put  on  board  a  dangerous  commodity  by  which  a  loss 
happened,  vnthout  due  notice  to  the  captain  or  any  other  person  employed 
iu  the  navigation.  The  burden  of  proving  that  B.  did  not  give  the  notice 
was  on  A.^ 

IX.  A  railroad  company  is  authorized  to  construct  a  railroad  in  a 
public  street,  with  necessary  switches  and  turn-outs;  it  makes  certain 
switches  which,  it  is  alleged,  are  a  nuisance.  The  presumption  is  that 
they  are  necessary,  and  the  burden  is  on  the  one  complaining  of  the 
nuisance. 2 

X.  A  physician  is  employed  to  treat  A.'s  wife  and  children.  In  a  suit 
for  his  services  it  will  be  presumed  that  the  visits  for  which  he  charges 
were  necessary.* 

XI.  A  statute  required  that  the  taking  of  the  sacrament  should  be  a 
prerequisite  to  holding  a  certain  office.  The  presumption  is  that  a  per- 
son holding  such  office  has  qualified  in  this  manner.* 

XII.  An  insolvent  exhibits  an  account  of  his  debits  and  credits  under 
oath.  The  presumption  is  that  it  is  a  true  account,  and  not  that  he  has 
committed  perjury .^ 

XIII.  The  action  is  for  the  malicious  prosecution  of  the  plaintiff  with- 
out probable  cause.  The  burden  of  proving  the  absence  of  probable 
cause  is  on  the  plaintiff.' 

XIV.  A  statute  provides  that  no  justice  of  the  peace  shall  hear  any 
examination  in  any  bar-room  whore  spirituous  liquors  are  sold;  a 
justice  holds  an  examination  in  a  bar-room.  It  will  not  be  presumed 
that  spirituous  liquors  were  sold  there.' 

In  case  I.,  if  the  inference  should  be  that  they  were  not 
married,  there  must  be  an  inference  that  they  were  living  in 
unlawful  relations.  *'  The  mere  cohabitation  of  two  persons 
of  dilTerent  sexes,  or  their  behavior  in  other  respects  as 
husband  and  wife,  always  affords  an  inference,  of  greater 
or  less  strength,  that  a  marriage  has  been  solemnized 
between  them.  Their  conduct  being  susceptible  of  two 
opposite  explanations,  we  are  bound  to  assume  it  to  be 
moral  rather  than  immoral." 


1  Williams  v.  East  India  Co.,  3  East,  104  (1802). 
«  Carson  v.  Central  R.  Co.,  35Cal.  325  (1868). 
3  Todd  V.  Myers,  40  Cal.  3.55  (18T0). 
<  Kmg  V.  Hawkins,  10  East,  211  (1809). 

6  Hewlett  V.  Hewlett,  4  Edw.  (X.  Y.)  7  (1839). 
0  Lavender  r.  Hudgens,  33  Ark.  7fi4  (1878). 

7  Savier  v.  Chipman,  1  Mich.  116  (1818). 


1 


RULE    90.]      niESUiirXIONS   IN   FAVOR   OF   INNOCENCE.        437 

In  case  II.,  the  presumption  is  that  the  parties  were  not 
married,  because,  if  they  were,  tiiey  were  guilty  of  violating 
the  express  words  of  a  penal  statute. 

In  casein.,*'  the  law  presumes  in  favor  of  innocence  and 
of  a  good  motive  rather  than  a  bad  one,  and  the  burden  was 
not  upon  the  defendant  to  show  that  he  had  no  criminal 
intent  in  taking  the  beer,  but  it  devolved  upon  the  State  to 
prove  that  he  had." 

"  We  have  here,"  said  Keating,  J.,  in  case  VII.,  •*  the 
fact  of  a  religious  ceremony  having  been  performed  by  a 
minister  of  religion  in  a  place  of  public  worship.  All  that 
is  required  to  make  the  marriage  a  strictly  valid  marriage 
is  that  the  place  where  the  ceremony  was  performed  was  duly 
licensed  under  the  statute  for  the  celebration  of  marriages, 
and  that  the  registrar  was  present.  The  question  is 
whether  we  may  presume  the  existence  of  these  two 
requisites.  I  think  we  may,  consistently  with  all  the  doc- 
trines of  legal  presumptions,  fairly  presume  that  the  cere- 
mony W(is  properly  and  legally  performed,  seeing  that  if  it 
were  otherwise  the  officiating  clergyman  would  have  been 
guilty  of  felony."  ^ 

It  was  argued  in  case  VIII.,  that  to  compel  A.  to  prove 
the  want  of  notice  was  compelling  him  to  prove  a  negative, 
which,  in  a  civil  action  at  least,  was  against  the  general 
rules  of  evidence.  But  Lord  Ellenborough  said :  "  That  the 
declaration,  in  imputing  to  the  defendants  the  having  wrong- 
fully put  on  board  a  ship,  without  notice  to  those  concerned 
in  the  management  of  the  ship,  an  article  of  a  highly  dan- 
gerous, combustible  nature,  imputes  to  the  defendants  a 
criminal  negligence,  can  not  well  be  questioned.     In  order 


1  In  Reg  V.  Malnwaring,  1  Dears.  &B.  1P.2,  a  similar  question  arose  upon  nn  in- 
dictment f  ir  bifraniy.  "  The  presence  of  llie  registrar  at  ihe  marriage,"  said  Wighi- 
man,  J.,  "  the  fact  of  the  ceremony  taking  place,  and  the  entry  in  the  registrar's 
book,  of  which  acoi)y  viis  piodured  at  tlic  trial,  seemed  to  me  at  the  time  to  bo 
circumstances  wtiich  alfordcd,  ancl  1  now  taink,  aided  as  they  arc  by  the  presump- 
tion omnia  rite  esse  acta,  they  do  afford  prima  facie  evidence  that  the  chapel  was  a 
duly  registered  place  in  which  marriages  might  bo  legally  celebrated.  If  it  were 
not  such  a  jilace,  all  those  who  took  part  iu  the  proceedings  would  be  crimmally 
liable  for  doing  so." 


438  PRESUMPTIVE  EVIDENCE.        [rULE  90. 

to  make  the  putting  on  board  wrongful,  the  defendants  must 
be  cognizant  of  the  dangerous  quality  of  the  article  put  on 
board,  and  if,  being  so,  they  yet  gave  no  notice,  consider- 
ino-  the  probable  danger  thereby  occasioned  to  the  lives  of 
those  on  board,  it  amounts  to  a  species  of  delinquency  in 
the  persons  concerned  in  so  putting  such  dangerous  article 
on  board  for  which  they  are  criminally  liable  and  punishable 
as  for  a  misdemeanor  at  least.  We  are  therefore  of 
opinion,  upon  principle  and  the  authorities,  that  the  burthen 
of  proving  that  the  dangerous  article  in  question  was  put  on 
board  without  notice  rested  upon  the  phiintiff  alleging  it  to 
have  been  wrongfully  put  on  board  without  notice  of  its 
nature  and  quality." 

Where  the  facts  of  a  case  are  consistent  both  with  honesty 
and  dishonesty,  a  judicial  tribunal  will  adopt  the  construc- 
tion in  favor  of  innocence.^  To  make  out  the  guilt  of  a 
person  charged  with  crime,  the  prosecution  is  required  to 
prove  every  material  allegation  and  every  ingredient  of  the 
crime.  The  accused  is  presumed  innocent  until  this  is  done.^ 
Even  in  a  civil  action,  where  a  question  arises  the  determin- 
ation of  which  involves  the  establishment  of  the  fact  that 
either  party  has  been  guilty  of  a  criminal  act,  the  other 
party,  in  order  to  obtain  a  determination  of  such  question 
in  his  favor,  must  overcome,  by  a  fair  balance  of  testimony, 
not  only  the  evidence  introduced  by  the  party  so  charged, 
but  also  the  legal  presumption  of  innocence  which  exists  in 
every  case.^ 

Other  instances  and  applications  of  the  presumption  of 
innocence  may  be  noted.  Thus,  it  is  a  legal  presumption 
that  a  criminal  act  done  by  a  wife  in  the  presence  of  her 
husband  is  done  under  his  coercion ;  *  a  person  under  the  age 
of  seven  years  is  conclusively  presumed  incapable  of  crime; 
while  a  person  between  the  ages  of  seven  and  fourteen  is 


1  Greenwood  v.  Lowe,  7  La.  Ann.  197  (1852). 
*  Home  V.  State,  1  Kan.  42  (1862). 
3  Bradish  v.  lUias,  35  Vt.  326  (1802). 
Oomiaouweallh  v,  Butler,  1  Allen,  (Mass.)  4  (1861)  ante,  p.  279. 


RULE    90.]       rRESUMmONS    IX    FAVOR    OF    INNOCENCE.         439 

presumed  incai)abIo  of  crime;  but  this  latter  presumption 
may  1)0  shown,  in  a  particular  case,  to  be  incorrect.^  From 
the  fact  that  two  oaths  have  boon  made  by  the  same  person 
on  tlio  same  sul)ject,  both  of  which  can  not  bo  true,  no  pre- 
sumption arises  that  either  of  them  was  willfully  or  corruptly 
made.^  There  is  no  presumption  of  law  that  eveiy  one 
present  at  a  riot,  and  not  actually  aiding  in  its  suppression, 
is  guilty  unless  he  proves  his  non-interference;  ^  and  it  has 
been  held  that  the  fact  that  three  or  more  persons,  in  a 
violent  manner,  beat  another,  does  not  raise  a  presumption 
of  law  that  they  assembled  with  that  intent,  or,  after  being 
assembled,  agreed  mutually  to  assist  one  another  in  execu- 
ting such  purpose.*  And  it  has  been  held  that  where  a 
statute  givosone  accused  of  crime  the  privilege  of  testifying 
or  not  on  his  preliminary  examination,  the  fact  that  he  gives 
no  evidence  on  his  examination  can  not  be  shown  on  the 
trial  as  a  presumption  against  his  innocence.*  Where,  by 
statute,  a  woman  is  capable  of  contracting  marriage  at  the 
age  of  fourteen,  there  is  no  presumption  that  a  married 
woman  is  over  fifteen.^  The  presumption  is  that  an  agent 
has  done  his  duty,  until  the  contrary  is  shown;  misconduct 
or  negligence  will  not,  in  the  absence  of  proof,  be  presumed.^ 

Sub-Rnlo  1.  —  Fraud  is  never  presumed ,  unless  such  circum- 
stances are  shown  as  willlegalli/  justify  such  an  inference. 

Illustrations. 

I.  It  was  contended  that  a  sale  was  fraudulent;  the  court  Instructed 
the  jnrj'  that  "  it  was  necessary  that  the  defendant  should  adduce 
stronger  proof  to  establish  fraud  than  to  prove  a  debt  or  a  sale ;  that  the 
presumption  was  that  every  man  acted  houestlj'  and  without  fraud,  and 
when  fraud  was  alleged  the  proof  must  not  ouly  be  sullicieut  to  establish 

1  State  V.  Goin,  9  Humph.  (Tenn.)  175  (1818)  ante,  p.  270. 

2  Schulter  v.  Merch.ints'  Mutual  Ins.  Co.,  62  Mo.  239  (1876). 
»  State  V.  McBride,  19  Mo.  239  (1853). 

«  State  I'.  Kempf,  2C  Mo.  429  (1S5S). 
6  Tenipleton  r.  rcoplc,27  Mirh.  501  (1873). 
•     6  Bruce  v.  Atkinson   22  Ark.  ;;G3  (1S60). 
Gailher  v.  Myrick,  9Md.  118  (1856). 


440  PRESU3IPTIVE   EVIDENCE.  [llULE    90. 

an  innocent  act,  but  to  overcome  the  presumption  of  liouesty."    Held, 
proper.^ 

II.  In  an  action  for  deceitfully  exchanging  property  it  was  alleged  that 
A.,  one  of  the  parties,  had  notice  of  the  adverse  claim  at  the  time  of  the 
exchange.     The  burden  was  not  on  A.  to  show  that  he  had  no  notice.^ 

III.  To  remove  the  bar  of  the  statute  of  limitations  from  a  claim 
agaiust  a  testator's  estate,  the  plaintiff  proves  a  receipt  of  part  payment, 
signed  by  him,  which  was  found  in  the  testator's  room.  The  mere  fact 
that  the  plaintiff  was  seen  in  that  room  alone  would  not  justify  the  in- 
ference that  he  fraudulently  placed  his  receipt  among  the  testator's 
papers. 

IV.  A  mortgage  being  alleged  fraudulent,  the  burden  of  showing  this 
to  be  so  is  on  the  complainant.* 

V.  A  law  allowed  an  administrator  commissions  on  the  money  In  his 
bands,  except  where  he  failed  to  make  annual  rejjorts  to  the  ordinary ;  in 
proceedings  in  which  it  was  charged  that  an  administrator  was  not 
entitled  to  money  which  he  claimed  as  commissions,  the  burden  of  show- 
ing that  he  did  not  make  the  required  returns  is  on  the  complainant. 
The  presumption  is  that  he  did  his  duty.* 

In  United  States  v.  McLean,^  which  was  <a  proceeding  to 
forfeit  a  vessel  for  acts  done  in  violation  of  an  act  of  Con- 
gress, Mr.  Justice  McLean  thus  expressed  himself  regarding 
the  extent  and  policy  of  the  presumption  of  innocence : 
"  The  object  of  the  prosecution  is  to  enforce  a  forfeiture  of 
the  vessel  and  all  that  pertains  to  it,  for  a  violation  of  the 
revenue  law.  This  prosecution,  then,  is  a  highly  penal  one, 
and  the  pcnulty  should  not  be  inflicted  unless  the  infractions 
of  the  law  shall  be  established  beyond  reasonable  doubt. 
That  frauds  are  frequently  practiced  under  the  revenue 
laws  can  not  be  doubted,  and  that  individuals  who  practice 
these  frauds  are  exceedingly  ingenious  in  resorting  to 
various  subterfuges  to  avoid  detection  is  equally  notorious; 
but  such  acts  can  not  alter  the  established  rules  of  evidence 
Yv^hich  have  been  adopted,  as  well  with  reference  to  the  pro- 


1  Hatch  V.  Bayley,  13  Gush.  27  (18E3). 

2  Patue  V.  Pelton,  48  Vt.  182  (1376) ;  and  see  Hibbard  v.  Mills,  4G  Vt.  243  (1873). 
«  Carroll  v.  Quynn,  13  Md.  370  (1858). 

*  Trice  V.  Gover,  40  Md.  102  (1874). 

6  Geev.  Hicks,  llich.  (S.  C.)  Eq.  Gas.  5  (1831). 

«  9  Pet.  (U.  S.)  683  (1835). 


EULE  90.]   PRESUMPTIONS  IN  FAVOR  OF  INNOCENCE.    441 

tection  of  the  innocent  as  the  punishment  of  the  guilty.     A 
view  of  the  evidence  in  this  case  must  create  a  suspicion  of 
fraud  in  the  mind  of  every  one  who  reads  it  with  atten- 
tion.    •     *     *     But  are  not  the  facts  consistent  with  an 
innocent  motive  ?     And  if  a  fair  construction  of  the  acts  and 
declarations  of  an  individual  do  not   convict    him  of   an 
offense  —  if  the  facts  may  be  all  admitted  as  proved  and  the 
accused  bo  innocent,  should  he  be  held   guilty  of  an  act 
which  subjects  him  to  the  forfeiture  of  his  property  on  mere 
presumption?     He  may  be  guilty,  but  he  may  be  innocent. 
If  the  scale  of  evidence  docs  not  preponderate  against  him, 
if  it  hang  upon  a  balance,  the  penalty  can  not  be  enforced. 
No    individual   should   be    punished  for   a  violation  of  law 
which  inflicts  a  forfeiture  of  i)r()[)erty  unless    the   offense 
shall  be  established  beyond  reasonable  doubt.     This  is  the 
rule  which  governs  a  jury  in  all  criminal  prosecutions,  and 
the  rule  is  no  less  proper  for  the  government  of  the  court 
when  exercising  a  maritime  jurisdiction."   "  It  is  certainly 
true,"  said  Mr.  Justice  Story,  delivering  the  judgment  of 
the  Supreme  Court  in  another  case,^  ♦'  that  length  of  time 
is  no  bar  to  a  trust  clearly  established,  and  in  a  case  where 
fraud  is  imputed  and  proved,  length  of  time  ought  not  upon 
principles  of  eternal  justice  to  be  admitted  to  repel  relief. 
On  the  contrary,  it  would  seem  that  the   length  of  timo 
during  which  the  fraud  has  been  successfully  concealed  and 
practiced  is  rather  an  aggravation  of  the  oirense,and  calls 
more  loudly  upon  a  court  of  equity  to  grant  ample  and  de- 
cisive relief.     But  length  of  time  necessarily  obscures  all 
human  evidence,  and  as  it  thus  removes  from  the  parties  all 
the  immediate   means   to  verify  the  nature  of  the  original 
transactions,  it  operates,  by  way  of  presumption,  in  favor 
of  innocence  and  against  imputation  of  fraud.     It  would  bo 
unreasonable,  after  a  great  length  of  time,  to  require  exact 
proof  of  all  the  minute  circumstances  of  any  transaction,  or 
to  expect  a  satisfactory  explanation  of  every  difficulty,  real 

1  Prevostf.  Gratz,  6  Wheat.  (U.  S.)  481  (IS-il) ;  1  Pet.  C.  C.  3G4  (1816). 


442  PREsoiPTmc  EVIDENCE.  [rule  90. 

or  apparent,  with  which  it  maj^  be  encumbered.  The  most 
that  can  fairly  be  expected  in  such  cases,  if  the  parties  are 
living,  from  the  frailty  of  memory  and  human  infirmity,  is 
that  the  material  facts  can  be  given  with  certainty  to  a  com- 
mon intent,  and  if  the  parties  are  dead  and  the  cases  rest 
in  confidence  and  in  parol  agreements,  the  most  that  we  can 
hope  is  to  arrive  at  probable  conjectures  and  to  substitute 
general  presumptions  of  law  for  exact  knowledge.  Fraud 
or  breach  of  trust  ought  not  lightly  to  be  imputed  to  the 
living,  for  the  legal  presumption  is  the  other  way,  and  as  to 
the  dead,  W'ho  are  not  here  to  answer  for  themselves,  it 
"would  be  the  height  of  injustice  and  cruelty  to  disturb  their 
ashes  and  violate  the  sanctity  of  the  grave,  unless  the  evi- 
dence of  fraud  be  clear  beyond  a  reasonable  doubt." 

Sub-Rule  3. — And  good  character  is  presumed.^ 

In  Harrington  v.  State^  it  was  said:  "The  court  in  effect 
instructed  the  jury  that  the  law  required  less  weight  to  be 
given  to  such  evidence  than  if  the  accused  were  on  trial  for 
a  crime  of  a  lower  grade.  The  weight  that  ought  to  be 
given  to  proof  of  good  character  docs  not  depend  upon  the 
grade  of  the  crime,  but  rather  upon  the  cogency  and  force 
of  the  evidence  tending  to  prove  the  charge,  and  the  motives 
shown  to  exist  for  the  commission  of  the  crime  by  the  ac- 
cused. The  presumption  of  innocence  which  is  raised  by 
such  proof  varies  in  force  with  the  circumstances,  but  not, 
we  apprehend,  with  the  grade  of  the  offense  irrespective  of 
the  circumstances.  The  charge  is  substantially  taken  from 
that  given  to  the  jury  by  Chief  Justice  Shaw  in  the  case  of 
Commonwealth  v.  Webster}  That  case  was  peculiar  in  its 
circumstances ;  and  we  may  here  remark,  that  it  is  unsafe,  as 
a  general  rule,  and  often  calculated  to  mislead,  to  adoi)t  a 
charge  prepared  for  a  particular  case,  and  give  it,  as  a  rule 


1  People  f.  Johnson,  61  Cal.  142  (18S2). 

«  l!MJllir.  St.  26-1  (]8C9). 

8  5  Gush.  324. 


RULE    90.]       PKESIIMPTIONS   l\   FAVOR   OF   INNOCENCE.        443 

of  law,  to  guide  juries  in  wcigliing  evidence  in  otlier  evidence 
dissimilar  in  that  circumstance.  The  distinction  taken  in 
Webster's  Case,  as  to  the  weight  that  may  bo  given  to  proof 
of 'n)od  character,  between  cases  where  the  charge  is  for  a 
crime  of  a  higher,  and  where  it  is  of  a  lower  grade,  we  have 
not  found  recognized  in  any  other  case;  while  its  correctness 
has  been  denied  by  the  Court  of  Appeals  of  New  York.i 
The  indictment  in  Cancemi's  Case  was  for  murder,  and  tho 
instruction  of  the  court  below  to  the  jury  was  the  same  as  that 
given  in  Webster's  Case.  The  instruction  was  held  to  be  erro- 
neous, and  to  constitute  ground  for  reversing  the  judgment. 
The  reasonable  elfect  of  proof  of  good  character  is  to  raise  a 
presumption  that  the  accused  was  not  likely  to  have  committed 
the  crime  with  which  he  is  chai-ged.  The  force  of  tiiis  i)re- 
sumption  depends  upon  the  strength  of  the  opposing  evi- 
dence to  produce  conviction  of  the  truth  of  the  charge. 
If  the  evidence  establishing  the  charge  is  of  such  a  nature 
as  not,  upon  principles  of  reason  and  good  sense,  to  be  over- 
come by  the  fact  of  good  character,  the  1  ittcr  will,  of  course, 
be  unavailing  and  immaterial.  But  the  same  will  be  true 
of  any  other  fact  or  circumstances  in  evidence,  which  after 
receiving  its  due  weight,  does  not  alter  the  conclusion  to  be 
drawn  from  the  other  evidence  in  the  case.  Good  character 
is  certainly  no  excuse  for  crime  ;  but  it  is  a  circumstance 
bearing  indirectly  on  the  question  of  the  guilt  of  the  ac- 
cused, which  the  jury  are  to  consider  in  ascertaining  the 
truth  of  the  charge.  Hence  it  has  been  held,  and  we  think 
correctly,  that  it  is  error  for  the  court,  in  a  criminal  case, 
to  charge  tho  jury,  that  "  in  a  i)lain  case,  a  good  character 
would  not  help  the  prisoner  but  in  a  doubtful  case,  he  had  a 
riizht  to  have  it  cast  in  the  scales,  and  weighed  in  his  behalf."- 
Thc  true  rule  was  said  to  bo, '  that  the  testimony  is  to  go  to 
tho  jury,  and  be  considered  by  them  in  connection  with  all 
the  other  facts  and  circumstances  ;  and  if  they  believe  the 


1  Cancemi  r.  People,  16  X.  Y.501. 
3  State  V.  nenry,  5  Jones  (N.  C.)i  66. 


444  rRESUMPTlYE  EVIDENCE.        [RULE  90. 

accused  to  be  guilty,  they  must  so  find  notwithstanding  bis 
good  character.'  " 

The  presumption  of  innocence  of  one  crime  may  convict 
a  person  of  another  and  a  greater  one.  Gibson  v.  ISiate'^ 
is  an  interesting  case  of  this  kind.  G.  was  indicted  for 
bigamy,  and  it  was  shown  in  evidence  that  he  had  married 
one  Maria  in  1855,  and  Ann  in  1857,  Maria  being  tlien 
living.  It  was  also  shown  that  Maria  had  been  married  in 
1849  to  one  E.,  who,  a  few  months  afterwards,  disappeared, 
and  at  the  date  of  the  marriage  between  G.  and  Maria  he  had 
been  missing  a  little  over  five  years.  It  was  held  that  E. 
would  be  presumed  to  be  dead  at  the  time  of  the  marriage 
between  G.  and  Maria,  otherwise  G.  would  have  been 
guilty  of  adultery,  though  the  effect  of  this  presumption 
was  to  render  G.  guilty  of  bigamy  by  making  the  first  mar- 
riage valid.  *'The  point  of  inquiry,"  said  the  court,  "  is 
whether  his  marriage  to  Maria  was  legal.  The  presumption 
of  law  is  that  it  is.  The  effect  of  the  statute  is  to  make  it 
legal  as  to  her  unless  her  husband  were  then  alive,  and  the 
presumption  is  that  he  was  dead.  It  must  also  be  pre- 
sumed to  be  valid  as  to  him  under  the  circumstances,  for  it 
can  not  be  presumed  to  be  valid  as  to  one  party  and  held 
to  be  void  as  to  the  other,  for  that  would  be  to  render  him 
guilty  of  adultery  for  cohabitation  with  a  woman  whose 
marriage  with  him  was,  as  to  her,  presumed  to  be  legal  and 
valid  until  the  contrary  was  shown,  which  would  be  absurd. 
The  law  presumes  the  marriage  to  be  valid  as  to  him,  and, 
in  opposition  to  that  presumption,  without  evidence  destroy- 
ing it,  he  can  not  be  heard  to  allege  that  it  was  illegal,  in 
order  to  avoid  the  punishment  of  his  crime  in  abandoning 
the  duties  which  he  thereby  assumed,  and  contracting  mar- 
riage with  another  woman.  Nor  is  he  permitted  to  com- 
plain that  the  presumption  of  the  legality  of  his  former 
marriage  is  to  be  used  for  the  purpose  of  convicting  him  of 
the  crime  of  his  subsequent  marriage.     The  presumption  is 

1  38  Miss.  313  (ISCO). 


RULE  91.]   PRESUMPTIONS  IX  FAVOR  OF  INNOCENCE.    445 

one  of  innocence,  Avhich  he  can  not  complain  of  because  lie 
subsequently  committed  a  crime,  in  relation  to  whicli  the 
presumption  in  the  former  case  operates  against  him." 

RULE  91.  — A  prima  facie  case  does  not  take  away  from 
a  defendant  a  presumption  of  innocence.^ 

The  jury  are  not  to  convict  unless  the  evidence  is  such  as 
to  lead  them  to  believe  that  the  prisoner  is  guilty.  They 
may  i)e  instructed  that  it  is  the  duty  of  the  prisoner  to 
explain  facts  and  circumstances  proved  against  him  con- 
sistently with  his  innocence.  But  if  he  fails  to  do  so  the 
jury  are  not  bound  to  convict  him  unless,  on  the  whole  evi- 
dence, they  believe  him  guilty.  Therefore  it  is  imi)roper 
to  instruct  them  that  any  facts  and  circumstances  which 
may  be  proved  against  him  place  the  burden  on  him  of 
proving  his  innocence. 

Illustrations. 

I.  Ill  a  criminal  prosecution  the  jury  were  instructed  that  when  the 
goveruraeut  made  out  a  prima  facie  case,  it  was  then  incumbent  on  the 
defendant  to  restore  himself  to  that  presumption  of  innocence  in  which 
he  was  at  the  commencement  of  the  trial.    Held,  error. 2 

IT.  On  an  indictment  for  forgery  in  uttering  a  money  order,  the  jury 
were  instructed  that  "  if  it  was  proved  that  the  order  came  into  the  hands 
of  the  defendant  unaltered  and  came  out  of  his  hands  altered,  the  bur- 
den of  proof  was  on  the  defendant  to  prove  that  he  did  not  alter  it." 
Held,  error.* 

III.  On  a  trial  for  murder  it  appeared  that  the  house  in  which  it  was 
committed  had  been  subsequently  set  on  fire  to  conceal  the  crime.  The 
jury  were  instructed  that  if  the  prisoner  might  have  been  at  the  scene  of 
the  Are  the  ohms  was  cast  upon  her  to  get  rid  of  the  suspicion  thus  cast 
upon  her.     Held,  error.* 

In  easel,  it  was  said:  "  "We  are  apprehensive  that  the 
distinction  between  a  prima  facie  case,  which  is  suificient 
to   call  upon  the   defendant    to  go   into   his   defense  and 

1  Commonwe.ilth  f.  Dana,  2  Mctc.  (Mas.i.)  329  (1S41). 

«  Coinmonwealth  v.  Kimljall,  24  Pick.  (Mass.)  373  (18.37). 

«  State  V.  Five,  20  Me.  312  (1SI6) ;  State  v.  Tibbets,  35  Me.  81  (1852). 

«  People  V.  bodiue,  IDen.  (N.  Y.)  281  (1845). 


446  PRESUMPTIA^E    EVIDENCE.  [kUEE    91. 

encounter  such  ^)?v*m<7  jTac/e  ease,  and  the  changing  the  bur- 
den of  proof,  M^as  not  sufficiently  considered  and  observed 
in  this  case.  Making  out  a.  prima  facie  case  does  not  neces- 
sarily or  usually  change  the  burden  of  proof.  A  prima 
fade  case  is  that  amount  of  evidence  which  would  be  suffi- 
cient to  counterbalance  the  general  presumption  of  inno- 
cence and  warrant  a  conviction,  if  not  encountered  and 
controlled  by  evidence  tending  to  contradict  it  and  render  it 
improbable  or  to  prove  other  facts  inconsistent  with  it. 
But  the  establishment  of  a  prima  facie  case  does  not  tnke 
away  from  a  defendant  the  presumption  of  innocence, 
though  it  may,  in  the  opinion  of  a  jury,  be  such  as  to  rebut 
and  control  it;  but  that  presumption  remains,  in  aid  of  any 
other  proofs  offered  by  the  defendant,  to  rebut  the  prose- 
cutor's 7:)r?>«a/ac2e  case.  The  court  are  of  opinion  that  the 
jury  should  have  been  instructed  that  the  burden  of  proof 
was  upon  the  commonwealth  to  prove  the  guilt  of  the 
defendant  —  that  he  was  presumed  to  be  innocent  unless  the 
whole  evidence  in  the  case  satisfied  them  that  he  was 
guilty." 

In  case  II.  it  was  said:  <' The  prosecuting  party  is 
bound  to  make  out  his  case,  in  civil  proceedings,  to  the 
satisfaction  of  the  jury,  and,  in  criminal  procGcdings,  beyond 
a  reasonable  doubt.  The  burthen  of  proof  docs  not  shift 
from  the  party  upon  whom  it  was  originally  thrown  upon 
the  production  of  evidence  by  him  sufficient  to  make  out  a 
prima  facie  case.  But  when  the  other  party  relies  upon 
facts  to  establish  another  and  distinct  proposition,  without 
attempting  to  impugn  the  truth  of  the  evidence  against  him, 
it  is  otherwise.  If  the  result  of  the  case  depends  upon  the 
establishment  of  the  proposition  of  the  one  on  whom  the 
burthen  was  first  cast,  the  burthen  remains  with  him 
throughout,  though  the  weight  of  evidence  may  have  shifted 
from  one  side  to  the  other  according  as  each  may  have 
adduced  fresh  proof." 

In  a  criminal  trial,  if  the  prosecution  fails  to  make  out  a 
prima  facie  case,  the  fact  that  the  defendant  produces  no 


EULK    92.]       rRESUMPTIONS    IN   FAVOIl   OF   IXNOCEXCE.        447 

evidence  to  negative  an  averment  which  the  prosecution  i-s 
bound  to  prove  will  not  warrant  the  jury  in  finding  that 
indictment  proved.^  "  In  a  criminal  case  the  establishment 
of  Vi  prima  facie  case  does  not,  as  in  a  civil  case,  take  away 
from  the  defendant  the  presumption  of  innocence  or  change 
the  burthen  of  proof.  A  solid  reason  for  the  distinction  is 
the  well  known  difference  in  the  measure  of  'proof  in  the 
two  classes  of  cases.  In  a  civil  case  the  j^laintiff  is  not 
required  to  prove  bej^ond  all  reasonable  doubt  the  facts  on 
which  he  relies  for  a  recovery,  and  therefore  when  he  estab- 
lishes a  prima  facie  case  the  burthen  of  proof  is  thereby 
shifted,  and  the  ^n';?m/«c/e  case  so  established  entitles  him 
to  recover  unless  it  is  destroyed  by  proof  from  the  other 
party.  But  in  a  crimii.al  case  the  State  is  required  to 
prove  beyond  all  reasonable  doubt  the  facts  which  consti- 
tute the  offense.  The  establishment,  therefore,  of  a  prima 
facie  case,  merely,  does  not  take  away  the  presumption  of 
innocence  from  the  defendant,  but  leaves  that  presumption 
to  operate  in  connection  with  or  in  aid  of  any  proofs 
offered  by  him  to  rebut  or  impair  the  prima  fa cie  case  thus 
made  out  by  the  State.  A  circumstance,  aided  by  that 
presumption,  may  so  far  rebut  or  impair  i\\e  prima  facie 
case  as  to  render  a  conviction  upon  it  improper.'' 


>'  2 


RULE  92.  — Wliere  there  are  conflicting  presumptions, 
tlio  presumption  of  innocence  will  prevail  against  the 
presumption  of  the  continuance  of  life  (A),  the  pre- 
sumption of  tlio  continuance  of  things  generally  C  B ) , 
the  presumption  of  marriage  (C),the  presumption 
of  chastity  (D).  But  it  is  otherwise  as  to  the  pre- 
sumption of  knowledge  of  the  law  (E)  and  the  pre- 
sumption of   sanity  (F). 

«'  Nothiujx  can  be   clearer  than  this,"  says  Mr.  Justice 


1  Coniiniinwealih  v.  Ilarfliinan,  9  Gray  (Mass.)  Ml  (1?57). 

2  Osk'trcc  f.  State,  23  Ala.  003  (ISJC) ;  Uniteil  States  r.  Douglass,  2  Blatclif.  (U.  S.) 
207  (1S51). 


448  PRESUMPTIVE    EVIDENCE.  [rULE    92. 

Heath  in  an  old  case,^  "  a  presumption  may  be  rebutted  by 
a  contrary  and  stronger  prei^uuiption." 

Illustrations. 

A. 

I.  Mary  B.  married  W.,  who  afterwards  enlisted  and  went  on  a 
foreign  service  and  was  never  lieard  of  afterwards;  twelve  months  after 
his  departure  she  married  B.  Held,  that  the  issue  of  B.  would  be  pre- 
sumed legitimate. - 

II.  Title  was  claimed  through  A.  and  B.,  his  wife;  it  was  proved  that 
B.  had  been  married  to  C,  who  was  dead,  and  that  she  had  had  three 
husbands  before  she  married  A.  The  presumption  was  that  these  hus- 
bands were  dead  before  she  married  A.' 

In  case  I.  the  conflicting  presumptions  were  the  presump- 
tion of  innocence  and  the  presumption  of  the  continuance 
of  life.  "  If,"  said  the  court,  "  W.  was  alive  at  the  time 
of  the  second  marriage,  it  was  illegal  and  she  was  guilty  of 
bigamy.  If  she  had  been  indicted  for  bigamy,  it  would 
clearly  not  be  sufficient.  In  that  case,  W.  must  have  been 
proved  to  have  been  alive  at  the  time  of  the  second  mar- 
riaire.  It  is  contended  that  his  death  ought  to  have  been 
proved,  but  the  answer  is  that  the  presumption  of  law  is 
that  he  was  not  alive  when  the  consequence  of  his  being  so 
is  that  another  person  has  committed  a  criminal  act."  * 


1  Jayne  v.  Price,  5  Taunt.  326  (1814). 

=  Kinj,'  V.  Iiiiialjiiants  of  Gloucestershire,  2  Barn.  &  Aid.  386  (1819) ;  Lockhart  v. 
White,  18  Tex.  102  (18.'3fi);  Sharp  v.  Johuson,  22  Ark.  79  (1860);  Greeiisborongh  v. 
Uuderhill,12Vt.  604  (1839);  Cameron  v.  State,  14  yVla.  .546;  48  Am.  Dec.  Ill  (1848); 
Chapman  v.  Cooper,  .5Uich.  (L.)  452  (I8-)2) ;  Yatedr.  Houston,  3  Tex,  442  (1848). 

3  Brciflen  v.  Palf,  12  S.  &  K.  (Pa.)  430  (1825). 

<  The  case  which  id  often  cited  in  connection  with  King  v.  Inhabitants  of  Glou- 
cestershire, is  King  V.  Inhabitants  of  IIarborne,2  Ad.  &  E.  540  (1835).  There  it 
appeared  that  one  Ann  Smith  had,  on  April  llih,  1831,  been  married  to  one  Henry 
Smith,  who  deserted  her.  Smith  had  been  previously  married  in  October,  1821,  to 
another  female  with  whom  lie  lived  until  1825,  when  he  left  lier.  But  several  letters 
had  been  received  from  her  from  Van  Dieman's  Land,  one  of  which  bore  date  only 
twenty-live  days  previous  to  the  second  marriage.  The  court  held  tliat  the  pre- 
sumption was  that  tlie  fl  st  wife  was  living  at  the  time  of  the  second  marriage.  The 
decision  in  this  case  was  evidently  based  on  the  very  short  time  wliich  transpired 
between  tlie  time  when  the  first  wife  was  sliown  to  be  alive  and  llic  date  of  the  sec- 
ond marriage.  And  see  Lapsley  v.  Grierson,  1  ILL.  Gas.  500  (1848).  In  Yates  v. 
Houston,  3  Tex.  433  (1848),  where  four  years  had  elapsed  since  the  former  wife  had 


RULE  92.]   PRESUMPTIONS  IX  FAVOR  OF  IXNOCEXCE.    449 

111  case  II.  it  vras  said:  "  In  an  old  transaction  like  this, 
the  fact  of  a  second  marriage  is  of  itself  some  evidence  of 
the  death  of  the  former  husband.  There  are  sometimes 
cases  where  it  is  unavoidably  necessary  to  decide  on  the 
existence  of  facts  without  a  particle  of  evidence  on  either 
side,  and  if  a  deci.^ion  in  a  particular  way  would  implicate 
a  party  to  a  transaction  in  the  commission  of  a  crime  or 
any  offense  against  good  morals,  it  ought  to  be  avoided,  for 
the  law  will  not  gratuitously  impute  crime  to  any  one,  the 
presumption  being  in  favor  of  innocence  till  guilt  appear." 
In  a  Massachusetts  case  it  was  said:  "The  presumption 
of  the  wife's  innocence  in  marrying  again  might  well 
overcome  any  presumption  that  a  man  not  heard  from 
for  four  3^cars  before  the  second  marriage,  or  for  sixteen 
years  afterwards  was  alive  and  was  her  lawful  husband  when 
she  married  the  second  time."  ^ 


I.  A.  and  B.,  as  husband  and  wife,  sue  C.  for  slander;  they  prove 
their  marriage,  but  C.  proves  declarations  of  the  wife  that  she  had  been 
married  in  Germany  to  another  man.  It  will  be  presumed  that  the  pre- 
vious marriage  has  been  dissolved  by  death  or  divorce  .^ 

II.  A.  threatens  to  kill  B.;  sometime  after  B.  kills  A.  There  is  no 
presumption  that  A.'s  Intention  continued  to  that  time.^ 

III.  A.  was  indicted  for  illegally  selling  liquor;  it  was  proved  that 
it  was  sold,  in  his  absence,  by  his  clerk.  The  fact  that  the  clerk  had  pre- 
viously made  similar  sales,  which  A.  had  approved,  does  not  raise  the 
presumption  that  the  last  sale  was  with  his  consent.* 

been  heard  from,  it  was  held  th.it  her  de.ith  would  bo  presumed  to  v.ilidate  a  pub?e- 
quent  marriage.  And  see  Lockhart  v.  While,  IS  Tex.  10-2  (ISjC).  In  Wilkie 
V.  Collins,  43  Miss.  433  (18;:5,)  a  husband  left  his  home  in  Mississippi  on  October  30th, 
1S50,  and  went  to  Louisiana  on  business,  where  he  was  last  heard  from  by  letter  to 
his  wife,  November  30lh,  1S5;1,  announcing  that  he  was  then  sick  in  bed,  and  would 
return  as  soon  as  he  was  able  to  travel.  lie  was  of  habitual  delicate  hcaltli,  and  liis 
domestic  relations  had  always  been  most  agreeable.  It  was  the  belief  of  his  family 
that  he  was  dead,  and  on  December  23d,  ISCl,  hia  wife  m.aiTied  again.  It  was  hebl 
that  the  husband  would  be  presumed  to  have  been  dead  at  that  time.  And  see 
Chapman  t-.  Cooper,  5  Rich.  (S.  C.)  L.  452  (1S52). 

1  Kelly  V.  Drew,  12  Allen,  107  (ISOO). 

«  Klein  v.  Landman,  29  Mo.  250  (18G0). 

»  State  r.  Brown, 64  Mo.  3C7  (1S77). 

*  Patterson  v.  State,  21  Ala.  571  (1S52). 

29 


450  PRESUMPTIVE    EVIDENCE.  [rULE    92. 

In  case  I.  it  was  said :  "  There  was  no  presumption  that  a 
marriage  which  was  proved  to  have  existed  at  one  time  in 
Germany  continued  to  exist  here  after  positive  proof  of  a 
second  marriage  de  facto  here.  The  presumption  of  hiw  is 
that  the  conduct  of  parties  is  in  conformity  to  hiw  until  the 
contrary  is  shown.  That  a  fact  continuous  in  its  nature  will 
be  presumed  to  contitme  after  its  existence  is  once  shown 
is  a  presumption  which  ought  not  to  be  allowed  to  overthrow 
another  presumption,  of  equal  if  not  greater  force,  in  favor 
of  innocence.  *  *  *  There  was  not  any  evidence  that 
the  first  husband  of  Mrs.  K.  was  still  living,  but  if  this  had 
been  established  we  think  she  was  still  entitled  to  the  bene- 
fit of  the  favorable  presumption  that  the  first  marriage  had 
been  dissolved  by  a  divorce." 

In  case  III.  it  was  said  :  "We  have  no  right  to  conclude 
that  because  he  has  sanctioned  previous  violations  of  the 
law  he  will  continue  to  do  so  ;  on  the  contrary,  as  every 
party  is  to'be  presumed  innocent  until  his  guilt  is  made  mani- 
fest, we  should  presume  that  he  repented  his  former 
transgression  and  therefore  did  not  assent  to  the  subsequent 
violation." 

Where  the  acts  grow  out  of  the  illicit  relations  of  the 
sexes,  this  rule  does  not  appear  to  hold  good,  as  the  follow- 
ing illustrations  will  show :  — 

I.  A.  and  B.  are  indicted  for  living  togetlier  in  adultery;  the  jury  are 
instructed  that  where  criminal  intercourse  is  once  proved  it  will  be  pre- 
sumed, if  the  parties  live  under  the  same  roof,  to  still  continue.  Held, 
correct.  1 

II.  B.  and  C.  live  together,  the  latter  as  B.'s  mistress;  B.  dies;  that 
a  marriage  took  place  between  them  before  his  death  will  not  be  pre- 
sumed.2 

It  has  been  said  that  while  much  will  be  presumed  in  favor 
of  a  marriage,  after  tlie  removal  of  a  barrier  between  par- 
ties who  have  been  prevented  from  contracting  it  by  a  legal 


1  Carotti  v.  State,  42  Miss.  334  (1868). 
»  Floyd  V.  Calvert,  53  Miss.  46  (1876). 


i 


RULE  92.]   rRESUMPTIONS  IX  FAVOR  OF  IXXOCEXCE.    451 

obstacle,  no  such  presumption  will  arise  whore  the  par- 
ties were  originally  at  liberty  to  form  a  legal  or  illegal 
union  as  they  preferred.  In  such  a  case,  having  originally 
elected  the  criminal  in  preference  to  the  lawful  relation- 
ship, they  must  bo  presumed  to  have  continued  therein 
until  some  change  of  intention  and  wishes  is  afErmatively 
shown. ^  This  distinction  renders  such  cases  as  those  in  the 
above  illustration  completely  in  harmony  with  cases  like  Wil- 
kinson V.  Payne  and  others,  noted  underprevious  rules.  la 
WilkinwnY.  Payjip,^  an  infant  contracted  a  void  marriage 
and  lived  with  his  wife  until  her  death,  which  occurred  only 
three  weeks  after  ho  attained  a  legal  age  to  marrj',  and  it 
appeared  that  during  the  whole  of  that  time  she  was  on  her 
death-bed.  It  was  nevertheless  held  that  a  marriage  would 
be  presumed.  The  bar  being  removed,  the  presumption 
was  in  favor  of  innocence. 

C. 

I.  A  presumption  of  marriage  ari«:es  from  cohabitation;  M.  and  T.  were 
proved  to  have  lived  together  and  cohabited;  Y.  afterwards  married 
S.  The  presumption  tliat  Y.  did  not  commit  bigamy  prevails  over  the 
presumption  that  M.  and  Y.  were  married.' 

II.  In  1840,  mari'iages  between  whites  and  negro  slaves  are  prohibited 
under  penalty  of  fine  and  imprisonment;  it  is  proved  that  a  negro  .^lave 
and  a  white  woman  lived  and  cohabited  together;  the  presumption  is  that 
the  relation  was  that  of  concubinage  and  not  of  marriage.* 


D. 

I.  W.  was  indicted  for  the  seduction  of  E.  under  a  statute  pun- 
ishing the  seduction  of  "  any  unmarried  fem.ile  of  previous  chast**  char- 
acter."    The  previous  chaste  character  of  E.  will  not  be  presumed. 


1  Floyd  V.  Calvert,  53  Miss.  46  (1876). 

»  4  T.  U.  468. 

8  Clayton  v.  Wanlell,  4  N.  T.  2:^0  (18.50) ;  Case  v.  Case,  17  Cal.  598  (1S61). 

*  Armstrong  r.  llolgcs,  2  IJ.  Mon.  (Ky.)  70  (1841). 

«  Westr.  Slate,  1  Wis.  203  (IS-V!).  But  see  State  r.  Wells,  48  Iowa,  671  (1878).  In 
Slocum  f.  reoi>lc,  00  111.  281  (lS7'''),the  prosccutiDn  was  under  a  stulule  punishing 
the  eiiticin;^  a^vuy  from  h,>nie  for  tiio  purpose  ot  iirostilulion,  of  any  unmarried 
woman  of  clia- tc  life  nnd  conversalim.  In  deciding  the  case  the  Sni>renie  Court 
said  :  "  The  jiiesumption  of  law  is  that  her  previous  life  and  conversation  were 
Chaste,  and  the  onus  was  upon  the  defendant  to  show  otherwise."    Hut  the  case 


452  PRESOIPTIVE   EVIDENCE.  [rULE    92. 

*'  It  is  true,"  it  was  said  in  case  I.,  "  that  Q,rc]inai-i]y  the 
reasonable  and  just  presumption  i3  in  favor  of  female 
chastity.  So  is  likewise  the  presumption  in  favor  of  moral 
honesty.  Happily,  these  presumptions  are  not  only  justified 
in  all  civilized  nations,  but  nobly  illustrated  an  well  by  the 
institutions  of  social  life  as  by  the  laws  enacted  by  govern- 
ment. Social  intercourse  is  based  upon  the  presumption  of 
virtue,  and  society  is  obliged  so  far  to  conform  to  this  law 
of  its  existence  that  even  in  its  most  corrupt  state  it  is  com- 
pelled to  put  on,  at  least,  the  form  and  semblance  of  virtue 
though  its  spirit  may  have  departed.  In  every  case  in 
which  the  integrity  of  an  individual  is  attacked  the  pre- 
sumption of  the  law  comes  to  his  aid.  Every  person  charged 
with  crime  is  presumed  innocent  till  he  be  proved  guilty. 
Fraud  is  never  to  be  presumed,  but  must  always  be  proved. 
Every  female  charged  with  an  offense,  the  essence  of  which 
is  unchastity,  is  presumed  to  be  chaste  until  the  contrary 
appears.  But  these  excellent  and  humane  presumptions,  so 
pregnant  with  the  testimony  which  they  bear  to  the  dignity 
and  honor  of  human  nature,  are  always  to  be  used,  in  the 
administration  of  justice,  as  a  weapon  of  defense,  not  of 
assault.  They  arc  the  shield  of  the  accused,  not  the  sword 
of  the  prosecutor.  *  *  *  "j^i^q  pi-evious  chaste  char- 
acter of  the  female  is  one  of  the  most  essential  elements  of 
the  offense,  made  so  by  the  express  words  of  the  statute  in 
conformity  with  the  suggestions  of  sound  reason.  A  pros- 
titute may  be  the  subject  of  rape  but  not  of  seduction.  It 
is  the  chastity  of  the  female  Avhich  the  statute  is  designed  to 
protect.  The  pre-existence  of  that  chastity  is  the  sine  qua 
71071  to  the  commission  of  the  crime.  That  is  the  subject  of 
legal  guardianship  provided  by  this  section.  It  is  a  sub- 
stantive matter  necessary  to  be  averred  and  proved.     If  the 


ehows  that  she  was  only  eighteen  years  old,  that  previous  to  her  seduction  she  had 
resided  with  her  parents,  went  to  school  and  church  and  mingled  in  good  society, 
and  t-he  testified  on  tlie  trial  that  she  never  had  intercourse  with  any  man  but  the 
defendant.  The  expression  of  llic  court  was  therefore  unnecessai-y,  as  there  was 
jjioof  enough  to  support  the  prosecution. 


RULE    92.]       TRESUMFnONS    IN    FAVOIl    OF    INNOCENCE.         453 

prosecutrix  were  to  change  places,  and  -were  she  iiidicttMl 
for  lascivious  conduct,  then,  indeed,  the  legal  presumption 
would  come  to  Ler  aid  and  her  chastity  would  be  presumed. 
But  when  the  State  accuses  one  of  its  citizens  with  tho 
violation  of  the  chastity  of  another  of  its  citizens  by  seduc- 
tion, the  law  presumes  the  accused  to  bo  innocent  of  the 
entire  offense  until  the  contrary  appears.  Tho  State  can 
not  be  pcrniitted  to  presume  the  immediate  pre-existence  of 
that  chastity  with  the  destruction  of  which  tho  defendant  is 
charged.  One  act  of  illicit  intercourse  affords  no  presump- 
tion that  another  has  not  preceded  it.  *  *  *  The  error 
consists  in  tho  instruction  which  the  court  gave  the  jury  to 
the  effect  that  the  law  presumed  that  she  was  previously  of 
a  chaste  character,  independent  of  any  proof  whatever.  This 
is  setting  up  a  presumption  on  the  part  of  the  State,  the 
prosecuting  party,  incompatible  with  the  presumption  which 
the  law  adbrds  the  defendant,  and  if  the  jjrinciple  should 
prevail  the  presumption  of  the  virtue  of  one  citizen  might 
work  the  condemnation  of  another  in  whose  favor  the  law 
affords  equal,  and  when  charged  with  crime,  even  stronger 
presumption." 

E. 

I.  All  persons  are  presumed  to  know  the  common  and  statute  law, 
and  are  responsible  for  its  violation. ^  Ignorance  of  the  law  excuses 
no  one  and  can  not  be  pleaded  as  an  excuse  for  the  commission  of  a 
crime. 

II.  A  statute  prohibits  the  selling  of  liquor  to  an  intoxicated  person 
and  prescribes  a  penalty  therefor.  B.  sells  liquor  to  an  intoxicated 
person  not  being  aware  of  the  law.  B.  is  nevertheless  liable,  as  he  is 
presumed  to  know  it.^ 

III.  A  public  officer  is  indicted  for  extortion  in  taking  a  fee  before  it 
was  due.  The  fee  being  due  to  him  after  a  time  in  any  event,  he  thought, 
that  the  law  allowed  him  to  take  it  in  advance.  This  is  no  excuse  and  he 
is  convicted.' 


1  Mayor  of  Baltimore,  r.  Xorman,  i  Md.  352  (1S53). 

«  AVhitton  v.  Slate.  37  Miss.  379  (1S51)). 

s  Com.  f.  r.afrlcy,  7  Peek.  270  (182S).  But  see  Cutlerr.  State,  36  X.  J.  (L.)  12.5  (1S73\ 
Where  in  a  similar  case,  the  couviciiou  was  set  aside  ou  the  ground  tLat  the  intent 
was  wanting. 


4o4  PRESUMPTIVE  EVIDENCE.        [RULE  92. 

IV.  A.  is  indicted  for  suffering  gaming  in  his  house.  ,,  It  appears  that 
A.  does  not  know  it  is  unlawful  to  permit  gamiug  in  his  house.  His  igno- 
rance of  the  law  does  not  excuse  A.^ 

V.  At  an  election,  a  number  of  votes  are  polled  for  one  B.,  who  is 
acting  at  the  time  as  returning  officer.  By  the  law  a  returning  officer  is 
not  eligible  as  a  candidate,  and  all  the  voters  know  that  B.  is  acting  in  this 
capacity.    There  is  no  presumption  that  they  know  that  he  is  disqualified  .2 

TI.  A.  having  found  some  property  secretes  it  with  intent  to  defraud 
the  owner  contrary  to  a  statute.  A.  is  indicted  under  the  statute  for  lar- 
ceny. A.  is  a  negro.  The  fact  that  it  is  the  common  belief  among  the 
negroes  in  the  neighborhood  that  property  belongs  to  the  Under  is  irrel- 
evant.* 

In  case  II.  it  was  said.  "  As  he  is  bound  to  know  the  law, 
he  is  held  to  the  consequences  of  a  willful  violation  of  it, 
whether  he  knew  of  its  existence  or  not.  Otherwise  it 
would  be  difficult  to  punish  any  man  for  a  violation  of  law> 
because  it  might  be  impossible  to  prove  that  he  had  knowl- 
edge of  the  law.  Hence  the  legal  presumption  that  every 
man  knows  the  law,  and  that  his  violations  of  it  are  Avill- 
ful." 

In  case  III.  it  was  said  :  "  This  is  the  case  of  an  honest 
and  meritorious  public  officer  who,  by  misapprehension  of 
his  rights,  has  demanded  a  lawful  fee  for  a  service  not  yet 
performed,  but  which  almost  necessarily  must  be  performed 
at  some  future  time.  If  we  had  authority  to  interfere  and 
relieve  from  the  penalty,  we  certainly  should  be  inclined  to 
do  so,  but  we  are  only  to  administer  the  law." 

In  Brent  v.  State,'^  it  was  ruled  that  the  presumption  of 
knowledge  of  law  did  not  extend  to  presuming  that  a  person 
knew  how  the  courts  would  construe  a  statute,  and  whether 
it  was  constitutional  or  unconstitutional.  The  defendants 
here  were  indicted  for  conducting  a  lottery,  and  showed 
an  act  of  the  Legislature  permitting  them  to  do  so.  The 
court  held  the  act  unconstitutional,  but  said  ;  "  We  see  no 


1  Winehart  v.  State,  6  Ind.  30  (1854). 

»  Queen  v.  Mayor  of  Tewkesbury,  L.  R.  3  Q.  B.  023(1868). 

8  State  V.  Welch,  73Mo.  284  (1880). 

443  Ala.  297  (186'J.) 


RULE  92.]   PRESUMPTIONS  IN  FAVOR  OF  INNOCENCE.    455 

good  reason  why  the  State  as  well  as  an  individual  is  not  to  be 
held  bound  by  this  salutary  and  just  maxim  that  no  *  man  shall 
take  advantage  of  his  own  wrong.  '  ^  Wo  think  it  clear 
that  the  appellant  did  not  intend  to  violate  any  penal  or 
other  law  of  the  State.  In  other  words,  that  he  acted  in  good 
faith,  and  verily  believed  he  was  doing  what  the  State,  by 
this  statute,  clearly  authorized  him  to  do.  But  it  is  insisted, 
on  the  part  of  the  State,  that  everybody  is  presumed  to 
know  the  law.  This  properly  understood  is  true,  })ut  it  is 
a  rule  of  presumption,  adopted  from  necessity,  and  to  avoid 
an  evil  that  would  otherwise  constantly  perplex  the  courts 
in  the  administration  of  the  criminal  law  ;  that  is,  the  plea 
of  ignorance.  Hence  the  maxim,  that  '  ignorance  of  the 
law  excuses  no  one.  '  The  courts  and  the  profession,  how- 
ever, well  know  that  this  necessary  rule  of  presumption,  is 
often,  and  perhaps  oftener  than  otherwise,  presuming 
against  the  truth.  But  we  think  the  State  presses  this  nec- 
essary rule  beyond  its  proper  measure,  and  insists  that  the 
appellant  was  not  only  bound  to  know  the  existence  of  the 
law,  but  in  this  case  was  presumed  to  know  this  special  act 
of  the  Legislature  was,  and  would  be  held  to  be,  uncon- 
stitutional, and  was,  therefore,  void  and  no  law.  "We 
can  not  consent  to  carry  this  rule  of  presumption  to 
this  extent;  it  must  be  confined  to  presuming  that  all  per- 
sons know  the  law  exists,  but  not  that  they  are  presumed  to 
know  how  the  courts  will  construe  it,  and  whether,  if  it  be 
a  statute,  it  will,  or  will  not,  be  held  to  be  constitutional. 
To  extend  this  rule  beyond  this  limit,  will  be  to  implicate 
the  Legislature  who  passed,  and  the  Governor  who  approved 
the  act,  in  a  charge  of  gross  immorality  and  dishonesty. 
If  the  appellant  is  to  be  presumed  to  know  the  act  w^as 
unconstitutional,  the  same  presumption  will  fix  upon 
them  the  same  extent  of  knowledge;  that  is,  that  they 
knew  the  act,  when  it  was  passed  and  approved,  was  in 

I  Broom's  Legal  Maxims,  top  page  206 


45(3  PKESU^rPTivE  evidence.  [r.uLE  92. 

conflict  ■with  the  constitution  ;  and  if  this  be  so,  it  will  be  a 
hard  matter  to  clear  either  from  this  grave  implication. 
But  we  are  satisfied  the  rule  must  have  the  limit  we  give 
it.  To  hold  otherwise,  will  take  from  the  rule  all  its 
virtue,  and  make  it  odious  to  all  right  and  just  thinking 
men." 

In  case  TI.  it  was  said  :  "The  defendant  offered  evi- 
dence to  prove  that  it  was  a  general  belief  among  colored 
people  in  that  county  that  money  or  property  found  having 
no  marks  upon  it  to  indicate  its  ownership,  belonged  to  the 
finder.  The  court  properly  excluded  the  evidence.  It  is 
a  principle  as  old  as  the  common  law  that  ignorance  of  the 
law  is  no  excuse  for  its  violation  ;  and  the  law  is  the  same 
for  a  colored  as  for  a  white  person.  We  have  not  now  a 
criminal  code  for  the  whites  and  a  diflereut  one  for  the 
blacks.  Under  our  present  constitution  no  law  making 
such  a  distinction  would  be  of  any  validity.  Wharton's 
Crim.  Law,^  is  cited  as  sustaining  the  proposition  that 
taking  possession  of  money  and  determining  to  keep  it 
under  an  honest  belief  of  a  right  to  do  so  because  found, 
is  a  good  defense.  There  is  no  section  88  at  page  1794, 
and  the  sections  on  that  page  do  not  relate  to  the  subject 
under  consideration,  but  section  87,  page  87,  asserts  the 
general  proposition  that  '  ignorance  or  a  mistake  of  fact 
is  admissible  for  the  purpose  of  negativing  a  particular 
intention,'  and  that  '  when  a  particular  intent  is  necessary 
to  constitute  the  offense  {e.g.,  in  larceny,  animus  furandi, 
in  murder,  malice),  then  ignorance  or  mistake  is  evidence  to 
cancel  the  presumption  of  intent  and  to  work  an  accjuital 
either  total  or  partial.'  But  in  section  88,  he  says: 
*  When  a  statute  makes  an  act  indictable  irrespective  of 
guilty  knowledge,  then  ignorance  of  fact  is  no  defense.' 
On  this  proposition  some  learned  authors  differ  in  opinion 
from  Mr.  Wharton.^     However  this  may  be,  the  section  of  our 

1  sect.  88,  p.  170*. 

2  Bishop,  4  South.  Law  Ecv.  (x.  8.)  58. 


RULE    92.]       rKESmiTTIONS   IN   FAVOK   OF    INNOCENCE.        457 

criminal  codo  in  question  nicakcs  it  a  felony  in  a  finder  of 
goods  or  money  belonging  to  another  to  convert  them  to  his 
own  use  with  intent  to  defraud  the  owner,  or  to  make  way 
with,  or  secrete  them  with  that  intent  ;  and  proof  of  igno- 
rance of  the  law,  or  that  the  finder  believed  that  ho  acquired 
the  title  by  finding  the  property,  does  not  tend  to  disprove  the 
intent  to  convert  it  to  its  own  use.  If  he  did  the  act  with 
the  double  intent  named  in  the  section,  it  is  no  defense  that 
in  his  ignorance  of  the  general  law  he  supposed  that  by 
finding  he  became  the  owner  of  the  property.  It  would  be 
no  defense  that  he  was  ignorant  of  the  section  under  which 
be  was  indicted,  which  of  iLselt' apprises  him  that  lost  prop- 
erty does  not  belong  to  the  finder,  and  why  his  ignorance  of 
the  o-cneral  law  to  the  same  effect  should  avail  him  as  a 
defense,  is  beyond  our  comprehension.  By  imposing  a  severe 
punishment  upon  the  finder  who  converts  to  his  own  use 
the  property  of  another,  direct  information  is  imparted 
that  such  does  not  become  his  by  such  finding.  This  is  the 
import  of  the  language  of  the  section,  and  it  is  in  harmony 
with  a  legal  principle  well  established  long  before  that  sec- 
tion was  enacted.  It  will  not  be  contended  that  ignorance 
of  the  statutory  provision  will  excuse  its  violation,  and 
if  ever  io-norance  of  the  law  could  constitute  a  defense  it 
certainly  will  not  do  so  when  the  identical  section  uiider 
which  the  accused  is  prosecuted  informs  him  of  the  very 
principle  of  law  of  which  he  avers  his  ignorance." 


I.  A.  is  clmrjjed  with  a  crime.  The  presumption  is  that  A.  'svas  sane 
■when  he  comniittcd  it,  and  if  he  wishes  to  be  excused  ou  the  grouud  of 
nou-respousibility,  he  must  prove  insanity. ^ 

In  case  I.,  if  A.  was  insane  when  he  committed  the  act, 
he  could  not  be  punished,  for  an  insane  person  can  not 
commit   a   crime.     If   the  presumption  of  innocence  were 

1  Cunningham  v.  State,  56  Miss.  2G0  (1879). 


458  PKESIBIPTIVE    EVIDENCE.  [rULE    92. 

general  and  •s\'ithout  exception,  the  presumption  would  be 
that  A.  was  insane  —  in  other  words  th.1t  the  act  was  not  a 
crime ;  that  he  was  innocent  because  he  was  non-responsible. 
But  the  presumption  of  sanity  and  the  presumption  of  inno- 
cence coming  in  conflict,  the  latter  mustgive  way  according 
to  the  best  considered  doctrine  on  this  question.  The  sub- 
ject is  an  important  one,  and  has  led  to  much  discussion. 
The  decisions  are  not  harmonious,  and  no  question  is  more 
debated  at  the  present  time,  when  it  arises  for  actual  de- 
cision, than  the  question  of  the  burden  of  proof  of  insanity 
in  criminal  cases.  Three  different  views  have  been  advanced. 
The  first  is,  that  inasmuch  as  every  man  is  presumed  to  be 
sane,  the  burden  of  proof  rests  on  the  party  setting  sanity 
up  as  a  defense  to  establish  this  insanity  beyond  a  reason- 
able doubt.  This,  it  will  be  observed,  entirely  extinguishes 
the  presumption  of  innocence  in  the  conflict  between  that 
and  the  other  presumption  —  the  presumption  of  sanity. 
The  second  view  likewise  considers  the  presumption  of 
innocence  overthrown  by  the  presumption  of  sanity,  but 
holds  that  the  presumption  of  sanity  will  prevail  only  until 
it  is  shown  to  be  otherwise  in  the  particular  case  by  a  pre- 
ponderance of  the  evidence.  In  the  third  view,  the 
presumption  of  innocence  prevails  to  a  certain  extent,  for, 
in  the  jurisdictions  where  this  view  is  favored,  it  is  held 
that  insanity  being  pleaded,  the  burden  of  proof  rests  on 
the  State  to  prove  the  sanity  of  the  prisoner.  It  is  not, 
however,  held  in  the  States  which  have  adopted  this  view 
that  insanity  is  presumed,  but  the  rule  is  that  if  the 
prisoner  gives  any  evidence  to  cast  a  doubt  on  his  sanity, 
the  State  is  obliged  to  prove  his  sanity  beyond  a  reasonable 
doubt. 

The  first  view  seems  at   present  to   prevail  only  in  the 
courts  of  Delaware^  and  New  Jersey,^  though  atone  time  it 


1  state  ».  Danby,  1  Houst.  (Bel.)  Cr.  Gas,  175;  State  v.  Pratt,  Id.  269;  State  v, 
Boice,  Id.  355;  State  v.  Draper,  Til.  5:51 ;  State  v,  Thomas,  Id.  511. 

2  State  V.  Spencer,  1  Zab.  (N.  J.)  201. 


RULE    1)2.]       PRESUMPTION'S    IX    FAVOR    OF   IXNOCENXE.         459 

ruled  ill  Alabama  Mmd  Missouri.^  The  second  view  pre- 
vails in  tlio  courts  of  Alabama,^  Arkansas,*  California,' 
Iowa,'  Kentucky,^  Maine,^  Massachusetts,^  Missouri ,^°  Korth 
Carolina, ^^  Ohio, ^^  Pennsylvania,^^  Texa-^,^*  Virginia.^'*  And 
the  third  view  is  maintained  in  the  courts  of  Illinois, ^^  In- 
diana,^^  Kansas, ^^  Michigan,'^  Mississippi,^  Nebraska,'" New 
Hampshire,''^  New  York^  and  Tennessee.**  But  all  of  these 
theories  agree  in  this  —  that  the  presumption  of  sanity 
overcomes  the  presumption  of  innocence  at  the  outset  and 
until  some  proof  of  insanity  has  been  shown.  And  it  has 
been  held  from  the  fact  that  a  person  Avas  insane  a  short 
time  before  t!io  commission  of  a  criminal  act  there  is  no 
presumption  that  be  was  insane  at  the  time  of  the  act.-' 


1  Brlnvea  v.  State,  5  Ala.  241. 

*  State  r.  Iliilin-,  21  iMo.  -li;!. 

»  McAllister  v.  Stale,  17  Ala.  iU;  State  v.  Marler,  2  Ala.  43;  State  v.  Boswell,  63 
Ala.  307. 

<  McKenzie  v.  State,  26  Ark.  3"4. 

6  People  f.  CofTiuaii.'Jl  Cal.  2:;;5 ;  People  v.  Wilson,  49  Cal.  14;  People  t>.  Messers- 
mith,  57  Cal.  57.3;  People  v.  JIcDowell,  47  Cal.  134;  People  v.  Wieden,  12  Ky.  G82. 

8  State  V.  Feltcr,  32  Iowa  49. 

'  Graham  v.  Com.,  16  B.  Mon.  (Ky.)  587;  Smith  v.  Com.,  1  Duv.  (Ky.)  224;  Kriel  v. 
Com.,  5  Bush.  (Ky.)  3G2. 

*  State  V.  Lawrence,  57  Me.  574. 

9  Com.  V.  Rogers,  7  Mctc.  (Mass.)  500;  Com.  v.  Eddy,  7  Gray  (Mass.),  sai;  Com.  v. 
Heath,  11  Id.  303. 

1"  State  V.  Klinger,  43  Mo.  127;  State  r.  Smith,  ,53  Mo.  267;  State  v.  Redemeier,  71 
Mo.  173 ;  State  v.  Erb,  74  Mo.  lO:) ;  State  v.  Baber,  74  Mo.  292. 

U  State  t'.  Payne,  80  N.  C.  309. 

12  Loeffner  t>.  State,  10  Ohio  St. 598;  Bond  v.  State,  23  Ohio  St.  349;  Bergin  v.  State, 
33  Ohio  St.  115. 

1'  Ortwcin  v.  Com.,  76  Pa.  St.  423;  Lynch  t'.  Com,  77  Td.  205;  Myers  v.  Cora.,  S3  Id. 
141 ;  PanncU  v.  Com.,  8ij  Id.  208;  Sayres  c.  Coin.,  SS  /(/.  ;',oi. 

J'  Webb  V.  State,  9  Tex.  App.  4:)0;  King  v.  State.  Id.  553;  Johnson  v.  State,  10  Id. 
677;  CLark  v.  State,  8  Id.  3.'>0;  Carter  r.  State,  12  Id.  ^00; 

li  Boswell's  Case,  20  Gratt.  (Va.)  860;  Baccigalupo's  Case,  33  7d.  807;  Dejarnette  ». 
Com.,  75  Va.  867. 

1"  Fisher's  Case,  23  111.293;  overruled  in  IIopps  r.  People,  31  111.  3S5;  Chaser. 
People.  40  111.  3.V2. 

1-  Polk  r.  State,  19  Ind.  170;  Stevens  v.  People,  31  Ind.  4S5;  Guetig  v.  State,  66 
Ind.  m. 

1*  State  t'.  Crawford,  11  Kan.  32. 

P  People  !•.  Garbutt,  17  Mich.  9;  People  v.  Finley,  38  Id.  48-3. 

*"  Cunningham  v.  State,  .56  Miss.  272. 

21  Wright  f.  People,  4  Xeb.  408. 

*»  State  V.  Bartlctt,  43  X.  II.  224 ;  State  v.  Jones,  50  X.  II.  369. 

"  O'Connell  r.  People,  87  X.  Y.  380. 

**  Dove  V.  Stale,  3  Ilcisk.  (Tcnn  )  348. 

«*  People  V.  Smith,  57  Cal.  130  (1880). 


460  rraisuMPTivE  evidence.  [kule  94. 

RULE   93.  —  The    presumption     of    innocence    may    be 
strengthened  —  as  by  the  relation  of  the  parties 

Illustration. 

I.  A.  is  indicted  for  the  murder  of  B.     The  fact  tliat  B.  is  A.'s  wife 
strengthens  the  presumption  of  his  innocence. ^ 

III  this  case  it  was  said:  "  It  was  the  prominent  fact  in 
the  case  that  the  deceased  was  the  wife  of  the  prisoner. 
The  presumption  thence  arising  that  she  was  not  killed  by 
her  husband,  or  it  was  not  of  malice  aforethought,  was 
powerful.  The  relation  of  husband  and  wife  clearly 
implies  a  strong  partiality  on  the  part  of  the  husband 
towards  his  wife,  and  the  most  ardent  desire  to  protect  her 
and  to  render  her  happy.  As  a  man  will  consult  his  own 
preservation  and  pursue  his  own  interest,  so,  as  a  general 
rule,  he  will  equally  regard  the  protection  and  interest  of 
his  wife.  The  motive,  for  the  most  part,  is  both  powerful 
and  unintermitting,  and  that  man  must  be  truly  unfortunate 
whose  experience  and  feelings  do  not  attest  this  unques- 
tionable truth.  Ought  not,  then,  the  strong  presumption 
arising  from  the  prisoner's  relation  to  the  deceased,  and  the 
probable  motives  from  this  source  influencing  his  conduct,  to 
be  refuted  if  capable  of  a  refutation  ?  Of  this  I  think  there 
can  be  no  question.  Declarations  of  thehusband  that  he  killed 
his  wife,  threats  to  kill  her,  and  evidence  that  he  maintained 
criminal  relations  with  other  women,  or  had  a  former  wife 
liviuo-,  would  all  be  relevant  to  overcome  this  presumption." 

RULE  94.  But  except  for  the  purpose  of  the  trial,  a 
presumption  of  guilt  arises  from  the  finding  of  an  in- 
dictment. 

Hhistration. 

I.  R.  is  committed  for  attempt  to  murder,  and  indicted  therefor  by 
a  grand  jury.  In  a  proceeding  to  reduce  or  increase  his  bail  pending  his 
trial,  11.  will  be  presumed  guilty  .2 


1  State  V.  Watkins,  9  Conn.  47  (1831) ;  State  v.  Green,  35  Id.  203  (1S6S). 

2  Ex  parte  Kyan,  44  Cal.  555  (1872). 


RULE  95.]   PRESUMrXIONS  IN  FAVOR  OF  IXNOCENCE.    4C1 

RUI^E  O.l.  AVlicro  a  person  docs  an  act  which  is  un- 
lawful unless  he  possesses  a  certain  qualification,  the 
burden  is  on  the  prosecution  to  show  that  lio  docs 
not  possess  the  requisite  qualification  (H),  unless  tlie 
proof  is  peculiarly  in  his  possession  (IJ),  and  that  it 
may  involve  him  in  proving  his  inuocenco  does  not 
chauj^o  the  rule  (C). 

Illustrations. 


I.  The  indictment  charged  II.  and  E.  vith  livinc;  together  as  hnsband 
and  wife  without  haviim  been  married.  Tlie  burden  -vvus  on  the  Slate  to 
show  that  they  were  not  married. ^ 

II.  A  statute  prohibited  the  sale  of  liquor  to  a  slave  without  the  con- 
sent of  his  ow  ner.  lu  a  proi^ccutlon  thereon,  tlie  burden  is  on  the  State 
to  show  that  the  owner  did  not  consent  to  the  sale.^ 

III.  M.  is  indicted  for  selling  liquor  without  a  license.  The  burden 
was  on  M.  to  show  the  possession  of  a  license.^ 

IV.  W.  is  indicted  for  carrying  away  a  slave  without  the  consent 
in  writing  of  the  owner.  The  burden  of  showing  that  such  consent  in 
writing  was  not  given  is  on  the  State.* 

V.  R.  is  indicted  for  coursing  deer  in  an  enclosed  ground  without 
the  consent  of  the  owner.  The  burden  is  on  the  prosecution  to  show 
that  the  owner  had  not  given  his  consent.* 

VI.  A  statute  required  a  master,  on  the  arrival  of  his  vessel,  to  re- 
port it  at  the  office  of  the  chief  officer  of  the  customs.  In  a  prosecution 
thereon,  the  burden  of  proving  that  the  report  was  not  made  at  the 
proper  office  is  on  the  prosecution.* 

VII.  The  use  of  steam  engines  and  furnaces  in  a  city  being  regulated 
by  ordinance,  the  burden  is  on  a  person  who  complains  of  certain  works 
of  the  kind  as  a  nuisance,  to  show  a  non-compliance  with  the  terms  of 
the  ordinance,  or  an  unlawful  or  improper  use  of  the  works.'' 

'  Ilopner  V.  State,  10  Ark.  143  (ISTu). 

2  State  V.  Evaus,  5  Joues  (X.  C.)  L.  250  (1S50) ;  Stale  r.  Miller,  7  Ircd.  (X.  C.) 
L.275  (l!^17). 

3  State  r.  Morrison,  3  Dev.  (X.  C.)  L.  209  (iSM).  ^ 
*  State  f.  \VootUy,2  Jones  (X.  C.)  L.  276  (1S55).    . 

»  Kex  f.  Rogers,  2  Cami).C54  (ISll). 

«  United  States  r.  Galacar,  1  Sprague  (U.  S.),515  (1S52). 

'  Call  V.  Allen,  1  .yien  (Mass.),  137  (1361). 


462  PKESUMPTIYE  EVIDENCE.        [rULE  95. 

The  general  rule,  both  in  civil  and  criminal  causes,  is 
that  the  burden  of  proof  is  on  the  party  holding  the  affirma- 
tive, but  there  are  some  exceptions  in  M'hich  the  proposi- 
tion, though  negative  in  its  terras,  must  be  proved  by  the 
party  who  states  it.  As,  for  instance,  in  a  prosecution  for 
a  penalty  given  by  statute,  if  the  statute  in  describing  the 
offense,  contains  negative  matter,  the  count  must  contain 
such  negative  allegation,  and  it  must  be  supported  by 
prima  facie  proof.  Such  is  the  case  in  the  prosecutions 
for  penalties  given  by  statutes  for  coursing  deer  in  enclosed 
ground,  on  land  not  the  party's  own,  or  taking  other  prop- 
erty not  having  the  consent  of  the  owner,  or  for  selling  as 
a  peddler,  goods  not  the  produce  or  manufacture  of  the 
country,  or  for  neglecting  to  prove  a  will  without  Just  ex- 
cuse made  and  accepted  by  the  Judge  of  probate  therefor. 
In  these  and  the  like  cases,  it  is  obvious  that  plenary  proof 
on  the  part  of  the  affirmant  c:m  hardly  be  expected,  and 
therefore  it  is  considered  sufficient  if  he  offer  such  evidence 
as,  in  the  absence  of  counter  testimony,  would  afford 
ground  for  presuming  that  the  allegation  is  true.  This,  we 
have  said,  is  the  general  rule,  and  those,  among  others,  are 
the  exceptions  to  this  rule,  but  there  is  a  solitary  exception 
to  the  exceptions  which  we  have  stated,  and  that  is  the  case 
where  the  negative  averment  is  particulary  within  the 
knowledge  of  the  other  party,  in  which  case  the  averment 
is  taken  as  true  unless  disproved  by  that  party.  Such,  for 
instance  in  civil  or  criminal  prosecutions  for  a  penalty  for 
doing  an  act  which  the  statutes  do  not  permit  to  be  done 
by  any  person  except  those  who  are  duly  licensed  there- 
for—  as  for  selling  liquors,  exercising  a  trade  or  profession, 
orthellke.  "  Here,  the  party,  if  licensed,"  it  was  said  in 
case  I.,  "  can  immediately  show  it  without  tlie  least  incon- 
venience, whereas  if  proof  of  the  negative  were  required,  the 
inconvenience  would  be  very  great.  *  *  *  'Qxxt  in  this 
case  it  might  be  as  inconvenient  to  the  defendant  to  prove  his 
marriage  with  the  woman  as  it  would  be  to  the  State  to 


RULK  95.]   PRESUMPTIONS  IN  FAVOR  OF  INNOCENCE.    463 

prove  circumstances  to  show  that  they  were  not  really  mar- 
ried." Ill  Commonwealth  v.  jr/^wr/ow,nhe  defendant  was 
indicted  for  selling  liquor  without  a  license.  The  court 
held  that  as  the  only  authority  from  whom  a  license  could 
be  obtained  Avas  the  board  of  county  commissioners,  who 
kept  a  record  of  all  licenses  issued,  it  was  incumbent  on  the 
prosecution  to  produce  prima  facie  evidence  that  the  de- 
fendant was  not  licensed.  "The  general  rule  is,"  says 
Shaw,  C.  J.,  "  that  all  the  averments  necessary  to  consti- 
tute a  substantive  offense  must  be  proved.  If  there  is  any 
exception  it  is  from  necessity,  or  that  great  difficulty 
amounting  practically  to  such  necessity,  or,  in  other  words, 
where  one  party  could  not  show  the  negative,  and  where 
the  other  could,  with  perfect  ease,  show  the  affirmative. 
But  if  a  party  is  licensed  as  retailer  under  the  statutes  of 
this  commonwealth,  it  must  have  been  done  by  the  county 
commissioners  for  the  county  where  the  cause  is  tried,  and 
within  one  year  next  previous  to  the  alleged  offense.  The 
county  commissioners  have  a  clerk,  and  are  required  by 
law  to  keep  a  record  or  memorandum  in  writing  of  their 
acts,  including  the  granting  of  licenses.  The  proof  is 
equally  accessible  to  both  parties  ;  the  negative  averment 
can  be  proved  with  great  facility,  and,  therefore,  in  con- 
formity to  the  general  rule,  the  prosecutor  ought  to  produce 
it  before  he  is  entitled  to  ask  a  jury  to  convict  the  party 
accused."^ 

In  case  II.  it  was  said  :  *'  It  is  manifest  that  the  owner, 
em[)loyer,  or  manager  of  a  slave  can  as  easily  be  called  on 
the  part  of  the  State  to  prove  that  he  gave  permission  in 
writing  to  the  slave  to  purchase  or  receive  as  a  gift  spiritu- 
ous liquors,  as  for  the  defendant  to  call  him  or  any  other 
person  to  prove  the  contrary." 

In  case  IV.,  case  III.    was  distinguished.     Two  general 

»  24  Pick.  (Mass.)  374  (1837). 

»  See,  also,  CommnnwMlth  v.  Kimball,  7  Mete.  (Mass.)  304  (1843) ;  Timson  v 
Moalton.S  Cuah.  (MiiBd.)  26'J  (184y);  Wilson  v.  Melvin,  13  Gray  (Mass.),  73  (1859). 


4G4  PKEsmirxivE  evidence.  [i.ule  95. 

rules  it  was  said  came  in  conflict  in  such  cases,  the  rule  that 
all  the  facts  necessary  to  constitute  the  oUcnse  must  be 
proved  by  the  prosecution  and  the  presumption  of  inno- 
cence. "It  will  not  be  disputed  that  the  one  which  sup- 
ports the  presumption  of  innocence  ought  to  be  predominant 
and  ought  to  yield  to  the  other,  unless  it  impose  no  hard- 
ships upon  the  defendant  and  be  necessary  to  prevent  a 
serious  practical  difficulty  in  the  execution  of  the 
law.  *  *  *  The  principle  upon  which  all  these  cases 
(case  II.  and  those  in  accord  therewith)  have  been  sustained 
is  a  plain,  practicable,  and  intelligible  one.  It  imposes  no 
hardship  upon  a  defendant  to  require  him  to  produce  a  writ- 
ten document  which  his  interest,  as  well  as  his  duty,  requires 
him  to  keep  as  a  justification  for  acts  which  he  may  do 
every  day  and  many  times  every  day.  It  may  well  be  taken 
as  conclusive  proof  against  him  that  he  has  no  such  docu- 
ment when  he  fails  to  produce  it.  It  is  true  that  he  may  by 
accident  have  lost  it,  but  such  instances  are  so  rare  that  they 
ought  not  to  aflect  the  rule,  especially  when  it  is  considered 
that  he  can,  by  proper  application,  procure  another  license  or 
prove  its  loss  and  give  satisfactory  evidence  of  its  con- 
tents. *  *  *  So  understood,  the  great  conservative  prin- 
ciple so  essential  to  the  security  of  those  charged  with  crime, 
that  they  shall  be  presumed  to  be  innocent,  until  the 
contrary  is  shown,  will  be  preserved  in  all  its  integrity. 
"Where  no  necessity  can  be  shown  for  departing  from  such 
general  rule,  it  must  embrace  an  averment,  though  nega- 
tive in  its  character.  This  is  not  only  consonant  Avith 
principle,  but  will  be  found  supported  by  the  highest 
authorities." 

And  it  has  been  held  that  where  a  public  officer  does 
an  act  which  would  be  a  violation  of  his  duty  unless 
certain  terms  or  conditions  had  been  performed  by  an 
individual,  such  performance  will  be  presumed  to  have 
taken  place.^ 

1  Titus  V.  Kimbro,  8  Tex.  210  (1852), 


RULE  J)0.]   TRESUMPTIOXS  IN  FAVOR  OF  IX^^OCE^'CE.    405 


B. 

I.  A  statute  prescribes  apciuUty  for  practicing  medicine  without  a 
license,  lu  a  prosccutiou  tliei-cou  tlie  burileu  is  ou  Ibc  tlefcndant  to  show 
a  license. 1 

II;  A  statute  prohibits  a  person  from  having  p:arae  in  liis  possossiou 
unless  he  possesses  certain  qualilicalions  Tiie  burden  is  ou  a  person 
prosecuted  under  this  act  to  sliow  these  qualilications.^ 

III.  A  statute  prohibited  importations  of  poods  from  England  except 
in  neutral  vessels;  in  a  prosecution  thereon  the  burden  is  ou  the  de- 
fendant to  show  the  ueutralityof  the  vessel.^ 

IV.  An  indictment  is  for  retailing  liquors  without  a  license;  the  bur- 
den of  proving  a  license  is  on  the  defendant.* 

V.  A  statute  prohibits  the  permitting  of  more  than  five  slaves  to  as- 
semble without  the  consent  of  the  owners;  it  Ijcing  proved  that  more 
tlian  live  slaves  assembled  on  the  defendant's  lot,  the  burden  is  on  him 
to  prove  the  consent  of  the  owners. ^ 

YI.  B.  is  charged  with  selling  diseased  meat  without  making  the  same 
Itnown  to  the  buj-er;  it  is  proved  that  B.  sold  diseased  meat.  The  bur- 
den is  ou  B.  to  show  that  he  disclosed  its  condition  to  the  buycr.^ 

VII.  A  statute  punishes  the  injuring  of  any  l^nilding  "  not  having  the 
consent  of  the  owner  thereof."  In  a  prosecution  thereon  the  burden  is 
on  the  defendant  to  show  such  consent.' 

VIII.  W.  is  indicted  for  keeping  a  ferry  without  a  license;  the  burden 
is  on  W.  to  prove  a  license.* 

IX.  Several  persons  are  found  together  under  circumstances  which 
would  render  them  guilty  of  riot,  unless  they  are  patrols  acting  under 
authority  of  law;  the  burden  of  proving  that  they  are  patrols  is  on 
them.9 

1  Apothecaries'  Co.  v.  Benlley,  Ry.  &  M.  159;  Sheldon  v.  Clark,  1  Johns.  (X.  Y.) 
513  (IbOG). 

•  King  V.  Turner,  5  M.  &  S.  206 ;  Rex  v.  Stone,  1  East,  639 ;  Spiercs  r.  Parker,  1  T, 
R.  144;  Je;f.s  V.  Ballard,  1  15.  &  1'.  4iiS;  Smyth  r.  Jeffries,  5  Trice,  258  (1821). 

3  United  States  v.  Ilayward,  2  Gall.  (f.  S.)  4S.>  (1S15). 

*  Geuingr.  State,  1  McCord  (S.  C.),:)T3  (1S22)  ;  Slate  v.  Morrison,  3  Dev.  (N.  C.) 
290  (is:!l) ;  Ilaskill  v.  Commonwealth,  :5  B.  Mon.  (Ky.)  312  (1843) ;  Shearer  v.  Slate,  7 
Blackf.  (Ind.)  99  (1G44) ;  State  v.  Crowell,  2.j  Me.  171  (1S45) ;  Harrison's  Case,  Ros- 
coe  Cr.  Kv.  60 ;  State  r.   Edwards,  GO  Mo.  490  ( 187.)). 

<>  Comraonwculth  r.  Conner,  5  Leigh  (Va.),  71S  (1834). 
«  Seibriphtt'.  State,  2  W.  Va.  591  (1867). 

7  State  r.  Whittier,  21  Mc.  o41  (1842). 

8  Wheat  f.  State,  6  Mo.  4J5  (1S40). 

e  State  f.  Atkinson,  6  Jones  (N.  C),  65  (1868). 

30 


466  PKESUMrxivE  evidence.  [kule  95. 

In  case  II.,  Lord  Ellcnborough  said:  "The  question  is 
upon  Avliom  the  onus  lorohandi  lies,  whether  it  lies  upon  the 
person  who  affirms  a  qualification  to  prove  the  affirmative 
or  upon  the  informer  who  denies  any  qualification,  to  prove 
the  negative.  There  arc,  I  think,  about  ten  different  heads 
of  quahfication  enumerated  in  the  statute  to  which  the  proof 
may  be  applied ;  and  according  to  the  argument  of  to-day 
every  person  who  lays  an  information  of  this  sort  is  bound 
to  cive  satisfactory  evidence  before  the  magistrates  to  neg- 
ative the  defendant's  qualification  upon  each  of  those  sev- 
eral heads.  The  argument  really  comes  to  this,  that  there 
would  be  a  moral  impossibility  of  ever  convicting  upon  such 
an  information.  If  the  former  should  establish  the  nega- 
tive of  any  of  these  different  qualifications  that  would  be 
insufficient,  because  it  would  be  said  nonliguet  but  that  the 
defendant  may  be  qualified  under  the  other.  And  does  not, 
then,  common  sense,  show  that  the  burden  of  proof  ought 
to  be  cast  on  the  person  who,  by  establishing  any  one  of  the 
qualifications,  will  be  well  defended?" 

C. 

I.  A.  points  a  gun  at  B.  In  a  prosecution  for  assault,  the  presumption 
is  that  the  gun  was  loaded. ^ 

II.  A.  is  indicted  for  murder;  he  pleads  that  he  is  under  the  age  of 
presumed  capacity.     The  burden  is  on  A.  to  prove  this.- 

*' The  prosecutor  could  not,  in  one  case  out  of  a  hundred, 
prove  positively  the  fact  that  the  gun  was  loaded  when, 
if  it  was  not,  it  was  easy  for  the  accused  to  remove 
the  presumption,  and  show  that  it  was  not  and  that  he 
knew  it  was  not,  by  proclaiming  the  fact  and  inviting  an 
examination." 

In  case  II.,  as  the  subject  of  direct  proof,  the  onus  was  on 
the  prisoner,  as  the  reputed  age  of  every  one  is  peculiarly 


1  Caldwell  v.  State,  T>  Tex.  19  (1840). 

»  State  V.  Arnold,  13  Ired.  (N.  C.)  L.  184  (1851). 


1 


RULE  96.]   PRESUMPTIONS  IN  FAVOR  OF  INNOCENCE.    4G7 

within  his  own  knowledge,  and  also  the  persons  by  whom  it 
can  be  directly  proved. 

RUIjE  96.  — A  person  is  presumed  to  intend  the  natural 
and  legal  consequences  of  Lis  acts. 

Illustrations. 

I.  A  debtor  knowing  himself  to  be  insolvent,  executes  a  bill  of  sale 
and  an  assignment  of  his  book  accounts  to  one  of  his  creditors;  the  pre- 
sumption is  this  was  done  with  the  iutentiou  of  giving  a  preference  to 
sach  creditor.^ 

IT.  A  married  man  is  proven  to  have  entered  a  house  of  prostitution 
in  the  evening  and  to  have  remained  all  night.  The  presumption  is  that 
he  committed  adultery  while  there. ^ 

III.  A  baker  is  charged  with  delivering  adulterated  bread  for  the  use  of 
a  public  asjium.  It  is  proved  that  A.  delivered  the  bread.  The  pre- 
sumption is  that  he  iutended  it  to  be  eaten.' 

IV.  B.  is  charged  with  setting  fire  to  a  building  with  intent  to  injure 
the  owner.  It  is  proved  that  B.  fired  the  building.  The  presumption 
arises  that  he  intended  to  injure  the  owner.* 

V.  A.  forges  the  name  of  B.  to  a  bill  of  exchange  and  negotiates  it. 
The  presumption  is  that  A.  intended  to  defraud  B.,  and  his  iutentiou  to 
pay  it  when  it  became  due  is  irrelevant.* 

VI.  B.  forges  C.'s  name  to  a  check  on  the  bank  of  D.  C.  has  no 
account  there.    The  presumption  is  that  B.  iutended  to  defraud  C.^ 

VII.  A.  was  employed  by  B.  to  purchase  stock  to  a  certain  amount.  A. 
gave  B.  a  forged  receipt  for  stock  for  that  amount.  The  presumption  ia 
that  A.  did  this  with  the  intention  of  defrauding  B.,  and  B.'s  opinion  that 
he  did  not  intend  to  defraud  is  irrelevant.'' 

VIII.  C.  is  indicted  for  issuing  a  forged  bank-note  with  intent  to 
defraud  the  bank.    The  note  was  issued  by  C.  to  a  third  person,  aud  it 


1  Ecker  r.  McAllister.  45  Md.  200  (1876) ;  and  see  Gardner  v.  Lewis,  7  Gall.  (U.  S.) 
377  (18«). 

«  Ev.-ins  V.  Evans,  41  Cal.  103  (1S71) ;  Astley  v.  Astley,  1  Hagg.  Ecc.  720  (1S28) 
«  Kiiigr.  Dixon,  3  M.&  S.  Vl  (1814). 

*  U  r.  Fanning:,  R.  &  U.  207  (ISll). 
».  R.  V.  Hill,  2  Moody,  30  (1S3S). 

•  R.  V.  N:ish,  2  Den.  C.  C.  i'M  (1852). 
T  R.  V.  Sheppurd,  R.  &  R.  160  (1809). 


4G3  RESUMPTIVE   EVIDENCE.  [kULE    96. 

appeared  that  its  eircciitlon  was  such  as  to  render  its  spuriousness  easily 
detectable  by  the  ollicers  of  the  bank  -who  must  examine  it  before  paying 
it;  but  this  an  ordinary  person  would  not  discover.  C.  is  presumed  to 
have  intended  to  defraud  the  bauk.^ 

IX.  A.  sets  fire  to  a  building.  The  presumption  is  that  he  intended 
to  destroy  it. 2 

X.  A  statute  provided  that  the  failure  to  pay  over  public  money  by  a 
public  ofQcer  should  be  puuishable.  A  public  officer  was  indicted  for 
failing  to  turn  over  as  required  a  license  fee  received  by  him.  The  pre- 
sumption is  that  the  failure  was  willful.' 

In  case  III.  Lord  EUenborongh  said,  that  it  was  a  univer- 
sal principle  that  when  a  man  is  charged  with  doing  an  act, 
of  which  the  probable  consequence  may  be  highly  injurious, 
the  intention  is  an  inference  of  law  resulting  from  the  doing 
the  act,  and  here  it  was  alleged  that  he  delivered  the  loaves 
for  the  use  and  supply  of  the  children,  which  could  only 
mean  for  the  children  to  eat,  for  otherwise  they  would  not 
be  for  their  use  and  supply. 

"  The  recorder,"  said  Maule,  J.,  in  case  VI.,  "  seems  to 
have  thought  that  in  order  to  prove  an  intent  to  defraud, 
there  should  have  been  some  person  defrauded,  or  who 
might  possibly  have  been  defrauded.  But  I  do  not  think 
that  at  all  necessary.  A  man  may  have  an  intent  to 
defraud  and  yet  there  may  not  be  any  person  who  could 
be  defrauded  by  his  act.  Suppose  a  person  with  a  good 
account  at  his  banker's,  and  a  friend  with  his  knowledge 
forges  his  name  to  a  check,  either  to  try  his  credit  or  to 
imitate  his  handwriting,  there  would  be  no  intent  to  defraud, 
though  there  might  be  parties  who  might  be  defrauded; 
but  where  another  person  has  no  account  at  his  banker's, 
but  a  man  supposes  that  he  has,  and  on  that  supposition 
forges  his  name,  there  would  ])e  an  intent  to  defraud  in  that 
case,  although  no  person  could  be  defrauded." 


1  R.  V.  Maz.agora,  R.  &  R.  291  (1815). 

«  People  V.  Orcutt,  1  Park.  C.  C.  2.52  (1851). 

2  State  V.  Heatou,  77  N.  C.501  (1877). 


RULE    97.]      PRESUMPTIONS    IX   FAVOR   OF   INNOCENCE.        4G9 

In  case  X.  it  was  said  :  "As  men  do  not  generally  violate 
tho  criminal  code,  the  law  presumes  every  man  innocent, 
and  this  presumption  of  innocence  is  to  be  observed  by 
the  jury  in  every  case.  But  some  men  do  violate  the 
law,  and  as  they  seldom  do  unlawful  acts  with  innocent 
intentions,  the  law  therefore  presumes  every  act  in  itself 
unlawful,  to  have  been  criminally  intended  until  the  con- 
trary appears.  A  familiar  example  is  on  the  trial  of  a 
case  of  homicide.  Malice  is  presumed  from  the  fact  of 
killing,  and  the  burden  of  disproving  the  malice  is  thrown 
upon  the  accused.  Tho  same  principle  pervades  the  law  in 
civil  as  well  as  criminal  actions,  Indeed,  if  this  were  not 
so  tho  admmistration  of  the  criminal  law  would  be  practi- 
cally defeated,  as  there  is  in  most  cases  no  other  way  of 
sustaining  the  intent  than  by  establishing  the  unlawfulness 
of  the  act." 

BULE  97.  — "Where  an  act  is  criminal  per  se  a  criminal 
intent  is  presumed  from  the  commission  of  the  act.^ 

Illustrations . 

I.  N.  is  proved  to  have  been  stabbed  with  a  dirk  knife  by  T.,  from 
which  wound  he  inslaully  died.  T.  is  presumed  to  have  intended  to 
kill  N.2 

II.  S.  shoots  at  C.  who  is  on  horseback.  The  ball  takes  effect  on  C. 
and  kills  him.  S.  testifies  that  he  shot  at  C.  intending  only  that  his  horse 
should  throw  him.     The  presumptiou  is  that  S.  intended  to  kill  C 

In  CommomveaJth  v.  Webster,^  Chief  Justice  Shaw  said  : 
*'  The  ordinary  feelings,  passions,  and  propensities  under 
which   parties   act  are  facts,  known  by   observation    and 


1  People  r.  March,  6  Cal.  W3  (185G) ;  Murphy  v.  Com.  23  Grat.  960  (1873) ;  McCono 
r.  High,2i  Iowa,  336  (18<>3) ;  Murphy  v.  .stale,  37  Ala.  U2  (1861);  Carroll  v.  Stale,  23 
Ala.  28  (1853;. 

2  Com.  (-.York,  9  Mete.  93  (1815);  Murphy  v.  People.  37  III.  447  (186.5);  Kiggs  r 
State,  30  Miss.  G3G  (1850);  Slalo  v.  r.urtraiul,  3  Ore.  61  (1868);  Stale  v.  Holme,  51 
Mo.  153  (1873) ;  Conner  v.  State,  4  Yerg.  137  (1833). 

8  Slate  f.  Smith,  2  Strobh.  77  (1847). 
*  6  Gush.  316  (1850). 


470  PRESUJIPTIVE    EVIDENCE.  [RULE    97. 

experience  ;  and  they  are  so  uniform  in  their  operation 
that  a  conclusion  may  be  safely  drawn  that  if  a  person  acts 
in  a  particular  manner  he  does  so  under  the  influence  of  a 
particular  motive.  Indeed,  this  is  the  only  mode  in  which 
a  large  class  of  crimes  can  be  proved.  I  mean  crimes 
which  consist  not  merely  in  an  act  done,  but  in  the  motive 
and  intent  with  which  they  are  done.  But  this  intent  is  a 
secret  of  the  heart  which  can  only  be  directly  known  to  the 
searcher  of  all  hearts  ;  and  if  the  accused  makes  no  decla- 
ration on  the  subject,  and  chooses  to  keep  his  own  secret, 
which  he  is  likely  to  do  if  his  purposes  are  criminal,  such 
criminal  intent  may  be  inferred,  and  often  is  safely  inferred 
from  his  conduct  and  external  acts." 

Said  Chief  Justice  Shaw,  in  case  I.:  "A  sane  man,  a 
voluntary  agent,  acting  upon  motives  must  be  presumed  to 
contemplate  and  intend  the  necessary,  natural,  and  prob- 
able consequences  of  his  own  acts.  If,  therefore,  one  vol- 
untarily or  willfully  does  an  act  which  has  a  direct  tendency 
to  destroy  another's  life,  the  natural  and  necessary  conclu- 
sion from  the  act  is  that  he  intended  so  to  destroy  such  per- 
son's life.  So,  if  the  direct  tendency  of  the  willful  act  is 
to  do  another  some  great  bodily  harm,  and  death  in  fact 
follows  as  a  natural  and  probable  consequence  of  the  act, 
it  is  presumed  that  he  intended  such  consequence,  and  he 
must  stand  legally  responsible  for  it.  So,  where  a  danger- 
ous and  deadly  weapon  is  used  with  violence  upon  the  per- 
son of  another,  as  this  has  a  direct  tendency  to  destroy  life, 
or  do  some  great  bodily  harm  to  the  person  assailed,  the 
intention  to  take  life  or  do  him  some  great  bodily  harm  is  a 
necessary  conclusion  from  the  act."  And  to  the  same 
effect  is  the  language  of  the  chief  justice  of  Pennsylvania  ; 
*'  He  who  uses  upon  the  body  of  another  at  some  vital  part, 
with  a  manifest  intention  to  use  it  upon  him,  a  deadly 
weapon,  as  an  ax,  a  gun,  a  knife,  or  a  pistol,  must  in  the 
absence  of  qualifying  facts,  be  presumed  to  know  that  his 
blow  is  likely  to  kill ;  and  knowing  this  must  be  presumed 


EULE    97.]       rRESUMPTIONS    IN   FAAOll   OF    INNOCENCE.        471 

to  intend  the  death  which  is  the  probable  and  ordinary 
consequence  of  such  an  act."  ^ 

In  case  II.  it  was  said:  "  If  one  were  to  fire  a  loaded  jnin 
into  a  crowd,  or  throw  a  piece  of  heavy  timber  from  the 
top  of  a  house  into  a  street  filled  with  people,  the  law  would 
infer  malice  from  the  wickedness  of  the  act ;  so,  also,  the  law 
will  imply  that  the  prisoner  intended  the  natural  and  prob- 
able consequence  of  his  own  act,  as  in  the  case  of  shooting 
a  gun  into  a  crowd,  the  law  will  imply  from  the  wantonness 
of  the  act,  that  he  intended  to  kill  some  one,  though  it 
might  have  been  done  in  sport.  If  the  prisoner's  object 
had  been  nothing  more  than  to  make  Carter's  horse  throw 
him,  and  he  had  used  such  means  only  as  were  appropriate 
to  that  end,  then  there  would  have  been  some  reason  for 
applying  to  his  case  the  distinction.  *  »  *  j^^i  jj^  this 
case  the  act  indicated  an  intention  to  kill  —  it  was  calcu- 
lated to  produce  that  effect  and  no  other  —  death  was  the 
probable  consequence  and  did  result  from  it. 

*'  If  a  man  raises  his  rifle  and  deliberately  fires  its  con- 
tents into  the  bosom  of  another,  or  by  a  blow  with  an  ax, 
which  might  fell  an  ox,  buries  it  into  the  brain  of  another, 
the  inference  from  the  act  is  irresistible  that  death  was 
meant,  and  so  the  law  presumes. 

"  The  inferences  of  the  mind,  which  are  equally  presump- 
tions of  law,  are  certain  and  conclusive  in  proportion  as  the 
acts,  from  their  nature  and  character,  are  certain  to  result 
in  death. 

*'  Thus,  the  plunging  of  a  poignard  into  the  heart  of 
another,  we  do  not  doubt,  was  intended  to  kill,  but  if  aimed 
only  at  the  arm  or  leg,  though  death  may  be  the  result,  yet 
the  mere  fact  of  giving  such  a  blow,  so  long  as  that  is  the 
only  criterion  by  which  W'e  judge,  renders  the  intent  more 
doubtful  and  the  inference  less  stroni;.  So  if  one  beat  a  full- 
grown  man  with  his  fist,  and  death  ensues,  we  would  ordi- 
narily feel  far  more  doubt  that  death  was  intended  than  if  it 

1  Agnew,  C.  J.,  in  Com.  v.  Drum,  68  Pa.  St.  17  (1888). 


472  rKESUMPTivE  EVIDE^-CE.  [rule  97. 

had  been  produced  by  the  use  of  a  dangerous  weapon.  So, 
too,  re2i;ard  may  be  bad  to  the  relative  strength  and  powers 
of  endurance  of  the  parties,  as  well  as  to  the  mode  in  which 
the  violence  is  applied. 

"A  powerful  blow  given  by  the  fist  alone  (but  not 
repeated)  upon  the  head  of  a  full  grown  man  would  not 
ordinarily  be  regarded  as  intended  to  produce  death  ;  but 
what  else  could  be  inferred  if  the  same  blow  were  planted 
upon  the  temple  of  an  infant  child  ! 

"  In  many  cases  the  inference  that  death  is  intended  is  as 
strong  when  perpetrated  by  a  drunken  as  when  perpetra- 
ted by  a  sober  man.  Thus,  if  by  a  deadly  weapon, 
as  by  a  rifle  or  a  bowie  knife,  a  bullet  or  blow 
is  sent  directly  or  designedly  to  some  vital  spot,  we 
should  infer  that  death  was  intended  with  almost  equal  cer- 
tainty, whether  the  perpetrator  were  drunk  or  sober.  So, 
too,  when  death  is  produced  by  poison,  and  we  see  in  the 
mode  of  its  administration  stealthy  calculation,  we  would 
infer  that  death  was  intended,  whether  he 'who  administers 
the  poison  was  in  a  state  of  sobriety  or  intoxication,  since 
in  the  very  character  of  the  act  we  c.ould  read  design. 

"But  we  also  know  that  intoxication  produces  more 
effect  upon  the  nervous  system  of  some  than  of  others. 
It  clouds  and  obscures  the  judgment  of  one  more  than  it 
does  another.  It  produces  greater  extravagance  of  exertion 
and  action  in  some  than  it  does  in  others,  and  sometimes 
consequences  result  from  such  extravagant  exertion  and 
action  of  which  the  party  himself  had  no  idea.  All  tliese 
things  are  to  be  considered  by  this  jury  in  determining 
upon  this  question  of  intent." 

Sub-Rule  1.  —  But  ivhen  a  speajic  intent  is  required  to 
make  an  act  an  offense,  the  doing  of  the  act  does  not 
raise  a  presumption  that  it  was  done  with  the  specijic 

intent. 

Illustrations. 

I.  R.  is  charged  with  assaulting  with  intent  to  murder  one  E.     It  is 


KULK  97.]  rnESUMrxiONS  ix  favok  of  innocence.   473 

proved  that  R.  fired  a  loaded  pistol  at  E.     There  is  no  presumption  that 
R.  intended  to  murder  E.^ 

II.  A  statute  makes  a  willful,  deliberate  and  premeditated  killinir  mur- 
der in  tlie  lirst  dc^rte.  15.  kills  C.  There  is  no  presumption  that  the 
killing  was  deliberate  and  premeditated. ^ 

In  case  I.  it  was  said:  "  The  general  rule  is  well  settled, 
to  which  their  are  few  if  any  exceptions,  that  when  a 
statute  makes  an  offense  to  consist  of  an  act  combined  with 
a  particular  intent,  that  intent  is  just  as  necessary  to  he 
proved  as  the  act  itself  and  must  be  found  by  the  jury,  as 
matter  of  fact,  before  a  conviction  can  be  had.  But  espec- 
ially when  the  offense  created  by  the  statute,  consisting  of 
the  act  and  the  intent,  constitutes,  as  in  the  present  case, 
substantially  an  attempt  to  commit  some  higher  offent^e  than 
that  which  the  defendant  has  succeeded  in  accomplishing  by 
it,  we  are  aware  of  no  well  founded  exceptions  to  the  rule 
above  stated,  and  in  all  such  cases  the  particular  intent 
must  be  proved  to  the  satisfaction  of  the  jury ;  and  no  intent 
in  law  or  mere  legal  presumption  differing  from  the  intent 
in  fact,  can  be  allowed  to  supply  the  place  of  the  latter." 

Where  one  slays  another  with  a  deadly  weapon,  the  pre- 
sumption is  that  he  did  it  voluntarily^  and  with  malice* 
So  from  proof  of  a  design  to  injure  another,  malice  is  pre- 
sumed.*^ Where  a  statute  makes  a  willful,  deliberate,  and 
premeditated  killinpr  murder  in  the  first  degree,  and  it 
appears  that  a  killing  took  place  (intentional,  not  acci- 
dental), there  is  no  presumption  that  it  was  deliberate  and 
premeditated.*  But  from  the  simple  act  of  killing,  the  law 
presumes  murder  in  the  second  degree.^     When  a  homicide 

1  Roberts  t-  People,  19  Mich.  401  (1870) ;  Mayhow  r.  People,  10  7ff.212  (1862). 

»  Com.f.  I)runi,.'i8  I'a.  St.  0  (isTti)  ;  Suite  v.  Much.  11,  (;4  Mo.  V.n  (ISTC);  >fate  v. 
Foster,  61  Id.  640  (1876) ;  Stale  v.  Laue,  C4  Id.  319  (1876) ;  Uaiiiby  v.  Slalo,  C6 
Tex.  523  (1872). 

3  Oliver  r.  State.  17  Ala.  .'587  (18.^0). 

*  Murphy  v  Slate,  37  Ala.  142  (1861) ;  Carroll  r.  State,  23  Ala.  28  (1853). 

«-  JlcCord  f.  High,  24  luwa,  3;;6  (1868). 

«  Slate  r.  Foster,  61  Mo.  549  (1876) ;  Commonwealth  r.  Dunn.  58  Pa.  St.  9  (1S76) ; 
State  r.  Mitchell,  64  Mo.  191  (1876) ;  State  r.  l.ano,  (U  Mo.  319  (1ST6). 

■  siaio  f.  Uassert,  6.')  Mo.  352  (1S77) ;  btaio  r.  Evans,  65  Mo.  574  (1877);  Stater. 
Turner,  W  right  (O.)  20  (1831). 


474  rPvESUMPTiVE  evidence.  [uule  97. 

has  been  proven,  that  fact  alone  authorizes  the  presumption 
of  malice,  and,  unexplained,  would  warrant  a  verdict  for 
murder  in  the  second  degree.  But  express  and  premed- 
itated malice,  can  never  be  presumed;  it  is  evidenced  by 
former  grudges,  previous  threats,  lying  in  wait  or  some 
concerted  scheme  to  kill  or  do  some  bodily  harm,  as  poison- 
ing, starving,  torturing,  or  the  attempted  perpetration  of 
rape,  robbery,  or  burglary,  and  these  evidences  of  express 
malice,  or  some  of  them,  must  be  proven  as  directly  as  the 
homicide,  before  the  jury  are  authorized  in  finding  a  ver- 
dict for  murder  in  the  first  degree.^ 

"Such  being  the  general  characteristics  of  presumptions  of 
fact,  I  proceed  to  notice  specially  some  of  the  more  promi- 
nent among  these  presumptions,  and  the  first  that  strikes 
the  eye  is  the  presumption,  as  it  is  called,  of  intent.  The 
first  criticism  here  to  be  made  is  that  in  setting  up  this  pre- 
sumption we  pass  from  the  sphere  of  inductive  reasoning 
aud  enter  upon  that  of  deductive;  and,  in  so  doing,  depart 
from  the  true  field  of  practical  jurisprudence.  The  syllo- 
gism presented  to  us  is  as  follows :  — 

**  Whoever  does  an  act  iutended  it: 
A.   did  this  act; 
Therefore  he  intended  it.  " 

* 'But  the  major  premise,  like  all  other  universal  and  abso- 
lute statements  involving  human  action,  is  untrue.  Acts  are 
so  far  from  being  always  intended  by  those  to  whom  they 
are  imputable,  that  in  a  large  number  of  cases  they  are 
unintended.  Negligent  offenses  are  perhaps  more  numer- 
ous, and  at  the  same  time  more  varied,  than  intended 
offenses.  For  one  effect  i)roduced  by  us  which  corresponds 
to  our  intent,  there  may  be  a  dozen  which  do  not  corre- 
spond. A  telegraph  operator  may  delay  for  half  an  hour 
forwarding  a  message.  His  intent,  we  may  presume,  is  to 
get  his  dinner  when  it  is  ready.  But  this  delay  may  pro- 
duce a  multitude  of  unintended  injuries.     It  may  discom- 

1  Hamby  v.  State,  36  Tex.  523  (1872). 


RULE  97.]     riiESUMrrioNS  in  favor  of  innocence.      475 

poso  a  whole  system  of  railroad  connections,  so  that  in 
some  remote  spot,  of  which  perhaps  the  operator  may  have 
never  thought,  a  collision  may  occur.     It  ni;iy  prevent  in- 
numerahle  appointments  from  being  fulfilled;   it  may  cause 
innumerable  injuries  to  persons  or  property  on  the  wide 
system  of  roads  it  affects.     The  negligence,  in  fact,  usually 
operates  on  a  far  wider  surface  tiian  the  willlul  act,  simply 
because  the  willful  act  is  usually  insulated  and  intrusive, 
while  the  negligence  is  an  omission  in  the  performance  of 
one  of  a  long  series  of  inter-dependent  duties,  of  which, 
when  one  falls  all  fall.     But  between  negligence  and  malice 
there  is  this  fundamental  distinction :   the  first  is  a  lack  of 
intent,  arising  from  intellectual  defect ;  the  second  is  a  bad 
intent,  arising  from  moral  defect.     It  is  of  the  essence  of 
malicious  offenses  that  they  are  intended  ;  it  is  of  the  essence 
of  negligent  offenses  that  they  are  not  intended.     Of  a 
majority  of  the  cases  in  which  one  man  invades  the  rights 
of  another,  we  may  safely  say  the  injury,  in  the  foi-m  it 
was  perpetrated,  was  unintended.     As  a  majority  of  the 
cases  covered,  therefore,  by  the  proposition  before  us,  it  is 
false. 

*'  We  must  also  remember,  in  further  illustration  of  the 
conclusion  just  stated,  that  there  are  few  cases  in  which  the 
object  intended,  even  among  what  are  called  malicious 
crimes,  fs  actually  affected.  A  number  of  scholastic  dis- 
tinctions have  been  taken  in  this  relation,  and  have  been 
considered  by  me  elsewhere.  It  is  sufficient,  at  present, 
stripping  them  of  their  technical  forms,  to  notice  some  of 
the  more  prominent. 

"1.  An  unintended  object  may  fortuitously  intervene  be- 
tween a  blow  aimed,  and  the  person  intended  to  be  hurt. 
A.,  for  instance,  shoots  at  B.  After  the  pistol  is  aimed, 
and  at  the  moment  of  its  discharge,  A. 's  child  suddenly 
darts  in  the  way.  The  killing  of  A.'s  child,  so  far  from 
being  intended  by  A.,  is  of  all  things  the  most  abhorrent  to 
him. 

"  2.  B.  is  struck  by  A.  when  mistaken  for  C.     Here  A. 


473  PEESUJIPTIVE    EVIDEXCE.  [llULE    97. 

intends  to  strike  B.,  but  intends  to  strike  him  under  a 
mistake  of  person.  The  intended  object  is  hit,  but  the 
object  is  Invested  with  wrong  attributes,  and  is  aimed 
at  under  the  false  belief  that  it  possesses  these  attri- 
butes. A.,  for  instance,  as  in  LevetCs  Case,  shoots  at  a 
casual  visitor,  B.,  imagining  B.  to  be  a  burglar.  Or  A. 
shoots  at  his  child,  B.,  imagining  the  child  to  be  an 
encm^Mvhom  he  designed  to  kill.  Here  there  is  no  inten- 
tion to  kill  B.,  as  B.  really  is,  though  there  is  an  intention 
to  kill  some  one  whom  B.  is  supposed  to  be.. 

"3.  Or  an  act  may  be  from  a  contingent  intent.  A.  shoots 
atB.,  knowing  that  B.  is  in  a  place  {e.g.,  a  railway  car- 
riage), in  which  other  persons  are  sitting.  A.  knows  that 
he  runs  the  risk,  when  shooting  at  such  an  object,  of  killing 
another  person  than  the  one  at  whom  he  aims.  He  kills  C, 
sitting  next  to  B.  Undoubtedly  he  may  be  regarded  as  em- 
bracing C  within  the  scope  of  his  purpose.  But  neverthe- 
less, he  did  not  intend  to  kill  C,  and  would  have  avoided 
the  contingency  of  so  doing  if  he  could  have  done  so  with- 
out abandoning  his  purpose  of  killing  A. 

"4.  The  victim  is  not  mistaken  for  another,  nor  killed  for- 
tuitously, nor  killed  incidentally  to  the  attempted  killing 
of  another,  but  killed  because  he  is  falsely  supposed  to  have 
property  on  hira  which  can  be  readily  appropriated  by  the 
assassin,  or  falsely  supposed,  as  in  the  remarkable  case  of 
the  murder  of  White  by  Crowninshield,  to  stand  in  the  way 
of  an  inheritance. 

"  Now,  in  no  one  of  the  four  cases  above  given  does  the 
intent  square  with  the  execution,  yet  of  wiiat  are  called 
malicious  killings  these  categories  constitute  a  large  propor- 
tion. Taking  them  in  connection  with  negligence,  we  may 
say,  therefore,  that  in  only  a  small  portion  of  offenses  does 
the  offender  execute  that  which  he  really  intends.  It  is  not 
generally  true,  therefore,  but  generally  false,  that  an  act  is 
intended  by  its  perpetrator. 

"Does  this,  again,  land  us  in  skepticism?  Because  we 
have  to  reject  the  proposition  that  all  offenses  are  intended, 


RULE    97.]       PKESU3IPTIONS    IN    FAVOU   OF   IXXOCENCE.        477 

are  wc  to  sweep  out  of  existence  the  entire  category  of  mali- 
cious crimes,  and  say  that  there  is  no  way  in  which  a  malicious 
crime  can  bo  proved?  So  far  from  this  being  the  case,  the 
rejection  of  the  false  proposition  here  criticised  leads  us  to 
the  only  logical  and  just  way  in  which  malice  can  be  estab- 
lished. It  undoubtedly  imposes  higher  intellectual  labor 
on  bench  and  bar,  and  requires  from  them  higher  intellect- 
ual gifts,  than  did  the  old  system  by  which  malice  Avas  at  the 
outset  assumed.  It  undoubtedly  is  an  easy  thing  to  say, 
'he  did  it,  therefore  he  did  it  maliciously  and  intention- 
ally.' But  it  is  an  untruth  in  many  cases,  and  in  all  cases 
it  is  a. peiilio  principii ;  sometimes  leading  to  bad  pleading, 
causing  men  to  be  indicted  for  the  wrong  crime  instead  of 
the  crime  really  committed;  sometimes  oppressing  innocent 
men,  by  throwing  tlic  burden  of  proof  on  them,  when  the 
burden  is  really  on  the  other  side;  sometimes  producing 
acquittals  because  the  jury  feel  that  the  assumption  is  an 
outrage  on  common  sense,  as  when  they  are  told  that  shoot- 
ing a  tame  fowl  with  intent  to  steal,  when  the  ball  glances 
and  strikes  B.,  whom  the  assailant  did  not  see,  and  had  no 
reason  to  imagine  to  be  in  the  neighborhood,  is  shooting  at  B., 
'  with  intent  the  said  B.,  feloniously,  willfully  and  of  mal- 
ice aforethought,  to  kill  and  murder.'  The  only  logical 
and  right  way  is  to  indict  a  man  for  what  he  really  docs. 
If  he  is  trying  to  steal  a  tame  fowl,  then  he  is  indictable 
for  an  attempt  at  larceny.  If  he  kills  a  man  negligentl}' 
when  trying  to  steal  the  fowl,  then  he  is  indictable  for 
negligent  homicide.  And  when  he  is  indicted  for  an 
intentional  and  malicious  act,  then  the  conclusion  is  to  be 
reached  by  a  canvassing  of  all  the  circumstances  of  the 
case.  No  two  cases  are  precisely  alike.  There  is  no  rule 
which  tits  absolutely  even  two  cases.  We  must  \)\xt  all  the 
facts  together,  and  examine  Avhether  from  them,  by  free 
logic,  we  can  infer  malice.  The  process  is  not  deductive, 
but  inductive.  It  is  determinable  not  a  priori  by  any 
postulate  of  positive  jurisprudence,  but,  after  the  evidcnco 
is  in,  by  inference  from  all  the  circumstances  of  the  case. 


478  PRESU3IPTIVE    EVIDENCE.  [kULE    98. 

The  question,  therefore,  is  one  of  fact  for  the  jury,  to  be 
adjusted  by  the  law  of  sound  reasoning,  not  by  technical 
jurisprudence  to  be  absolutely  pronounced  by  the  court. 
Yet,  "while  for  the  jury,  and,  in  the  sense  above  stated,  a 
question  of  fact,  it  is  also  a  question  of  law  in  its  most 
comprehensive  sense,  of  the  law  of  inductive  proof.  And 
to  this  law,  as  pouring  its  light  upon  all  the  circumstances 
of  the  case,  should  the  attention  of  counsel  be  turned  in 
their  argument,  and  of  the  courts  in  their  charge."^ 

RUXiE  98.  —  Possession,  knowledge,  or  motive  may  over- 
tlirow  tlio  presumption  of  innocence,  and  raise  in  its 
place    a    presumption  of  guilt. 

*•  If  A.  brings  an  action  of  trover  against  B.  for  the  con- 
yersion  of  a  horse,  and  proves  title  in  himself  and  a  demand, 
it  devolves  the  burden  on  B.  of  proving  that  the  title  of  A. 
has  been  divested  or  that  he  has  a  better.  And  it  will  not 
be  presumed  that  B.  has  purchased  the  horse  of  A.  If  the 
close  of  A.  has  been  broken,  and  a  fruit  tree  dug  up  and  car- 
ried off,  and  that  tree  is  found  set  out  in  the  yard  of  B., 
especially  if  he  is  doing  some  act  which  shows  that  he  has  a 
knowledge  of  its  being  there,  it  affords  prima  facie  evi- 
dence that  he  was  the  trespasser.  So  if  a  house  had  been 
removed  from  the  land  of  A.  and  is  found  on  the  land  of  B. 
and  occupied  by  B.,  under  the  plea  of  not  guilty,  in  an 
action  of  trespass,  it  devolves  upon  B.  the  necessity  of 
accounting  for  its  being  there  consistently  with  his  inno- 
cence." ^  A  presumption  is  a  probable  inference  which 
common  sense  draws  from  circumstances  usually  occurring 
in  such  cases.^  There  is  a  wide  difference  between  pre- 
sumptions of  law  and  presumptions  of  fatt.  The  law 
draws  no  presumption  or  inference  but  from  facts  which  if 
unexplained  are  conclusive  of  guilt.     But  presumptions  of 


1  Presumptions  in  Criminal  Cases,  Francis  Wharton,  Grim.  Law  Mag.  1831. 
»  Kincli  V.  Alston,  2  II.  I'.  (Pa.)  85  (1832). 
»  State  V.  Tibbert,  35  Me.  81. 


RULE  98.]   PRESUMPTIONS  IN  FAVOR  OF  INNOCENCE.    4  79 

fact  are  to  be  drawn  by  the  jury,  and  every  fact  that  tends 
to  prove  any  fact  that  is  evidence  of  guilt,  however  conclu- 
sive such  fact  may  be,  is  admissible  evidence.^  Where 
property  has  been  stolen,  and  recently  thereafter  the  same 
is  found  in  possession  of  a  party,  it  is  incumbent  on  him  to 
account  for  such  possession  in  a  manner  consistent  with  his 
innocence  or  rebut  the  presumption  of  guilt  arising  by  rea- 
son of  such  recent  possession,  and  until  he  so  accounts  for 
such  possession  or  so  rebuts  such  presumption,  the  law  pre- 
sumes he  is  the  thief.  The  possession  of  the  fruits  of  crime 
recently  after  its  commission  is  ^^riwa  facie  evidence  of 
guilty  possession,  and  if  unexplained  cither  by  direct  evi- 
deme  or  by  attending  circumstances  or  by  the  character  and 
habits  of  life  of  the  possessor,  it  is  taken  as  conclusive. 
And  the  strength  and  character  of  this  presumption  will 
depend  very  much  on  the  kind  and  description  of  the  prop- 
erty when  considering  the  recent  possession  and  all  the 
various  circitmstances  surrounding  the  case."  ^  The  rule 
has  been  stated  in  a  North  Carolina  case  to  be,  that  it  is 
only  where  the  stolen  goods  are  found  in  a  party's  posses- 
sion so  soon  thereafter  that  he  could  not  have  reasonably 
got  the  possession  unless  he  had  stolen  them  himself,  that 
the  law  presumes  that  he  is  the  thief  ,^  and  this  is  a  well 
known  limitation  to  the  rule  as  stated  above.  "  Possession 
of  stolen  property  must  be  recent,  after  the  theft,  in  order 
to  raise  the  presumption  of  theft."  * 

It  is  held  in  Illinois  that  it  is  error  to  instruct  the  jury 
that  the  possession  of  stolen  property  soon  after  it  is  stolen 
\%  of  itself  inima  facie  evidence  that  it  was  stolon  by  the 
party  in  whose  possession  it  is  thus  found,  and  throws  the 
burden  on  him  of  showing  that  his  possession  was  honest.' 
Everything  connected  with  the  possession  must  be  consid- 

1  Balaam  «.  State.  17  Ala.  451  (1&50). 

«  state  r.  Gray,  37  M).  ■403  (ISGG)  ;  Mate  v.  Bruin,  34  Mo.  637  (1SG4). 

«  State  V.  Graves,  7-2  N.  C.  4S2  (1S75). 

«  stater.  WolfT,  15  Mo.  1G3  (1S51) ;  State  v.  Floyd,  15  Mo.  854  (1852) ;  Fackler  ». 
Chapman,  20  y\o.  240  (1S5.")) ;  State  r.  Crcson,  3S  .Mo.  372  (18CC) ;  State  v.  Williams,  54 
Mo.  170  (1S7:')  ;  State  v.  Hobbins,  ^  Mo.  413  (1S77). 

<•  Coukwright  V.  People,  35  111.  204  (IStU). 


480  PRESUMPTIVE    EVIDENCE.  [rULE    98. 

ered,  such  as  its  proximity,  whether  it  was  concealed, 
"whether  the  party  admitted  or  denied  tlie  possession, 
"whether  other  persons  had  access  to  the  place  Avhere  it  "was 

found. 

Illustrations. 

I.  A.  being  accused  of  stealing  money,  afterwards  points  out  where 
the  money  is  hidden.     The  presumption  is  that  A.  was  the  thief.^ 

II.  A.  was  prosecuted  for  suffering  intoxicating  liquor  to  be  drunk 
in  his  grocery.  It  Avas  proved  that  certain  Jiquor  sold  l)y  A.  Avas  drank 
in  his  store.  Jleld,  that  it  was  to  be  presumed  that  it  was  drunk  with 
A.'s  permission.2 

In  case  II.it  was  said:*' The  witness  proved  that  the 
liquor  sold  by  defendant  was  drunk  at  his  house,  and  the 
legal  presumption  arises  that  this  was  done  by  his  permis- 
sion, as  every  man  is  supposed  to  have  a  control  in  his  own 
house.  If  this  was  not  the  fact,  the  defendant  could  have 
shown  that  he  forbade  the  drinking,  and  it  was  incumbent  on 
him  to  show  the  matter  of  defense." 

"  The  effect  of  particular  motives  upon  human  conduct," 
says  an  eminent  WTiter,^  ♦'  is  the  subject  of  every  man's 
observation  and  experience  to  a  greater  or  less  extent,  and 
in  proportion  to  his  attention,  means  of  observation,  and 
acuteness  every  one  becomes  a  judge  of  the  human  charac- 
ter and  can  conjecture  on  the  one  hand  what  would  be  the 
effect  and  influence  of  motives  upon  any  individual  under 
particular  circumstances,  and  on  the  other  hand  is  able  to 
presume  and  infer  the  motives  by  which  an  agent  was  actu- 
ated, from  the  particular  course  of  conduct  which  he 
adopted.  Upon  this  ground  it  is  that  evidence  is  daily 
adduced  in  courts  of  justice  of  the  particular  motives  by 
which  a  party  was  influenced  in  order  that  the  jury  may 
infer  what  his  conduct  was,  under  those  circumstances,  and 
on  the  otlier  hand  juries  are  as  frequently  called  upon  to 
infer  what  a  man's  motives  and  intentions  have  been  from 
his  conduct  and  his  acts.  All  this  is  done  because  every 
man  is  presumed  to  possess  a  knowledge  of  the  connection 

1  Hn'lson  v.  State,  9  Terg.  (Tenn.)  408  (1836). 

a  Casey  v.  State,  6  Mu.  G16  (1840).  '  Stark.  Ev.  50,  51. 


RULE  99.]      PRESU3IPTI0NS    IX   FAVOR   OF    INXOCEXCE.  481 

between  motives  and  conduct,  intentions  and  acts,  wliich  he 
has  acquired  from  experience,  and  be  able  to  presume  and 
infer  the  one  from  the  other."  As  to  presumptions  of 
motive  from  conduct  Bond  v.  Warrenj^  is  an  instructive 
case.  "\V.  was  sued  for  an  assault  on  B.  The  only  witness 
at  the  trial  was  a  dau<^hter  of  B.,  who  testified  that  on  the 
occasion  complained  of,  AV.  walked  into  her  father's  house 
and  said  :  ♦*  How  dare  you  send  a  letter  to  my  house;"  that 
B.  replied,  «'  What  do  you  mean,  sir?"  and  that  W.  imme- 
diately commenced  the  assault  conjplained  of.  The  witness 
knew  that  W.  had  a  daughter;  had  never  seen  him  at  B.'s 
house  before  and  did  not  know  of  any  previous  difnculty 
between  W.  and  B.  The  jury  were  instructed  that  although 
on  this  evidence  they  might  infer  that  B.  had  sent  a  letter  to 
"W.'s  house,  the}'  could  not  presume  that  the  letter  had  been 
sentto  W.'s  daughter  or  was  otTcnsive  or  insulting,  but,  if  this 
were  so,  "VV.  should  show  it.  On  appeal  this  was  held  to  be 
error.  "  "What  motive,"  said  the  court,  "  can  fairly  and 
reasonably  be  inferred  from  such  conduct  but  that  a  letter 
was  sent  by  the  plaintiff  to  the  defendant's  house,  which 
was,  or  which  the  defendant  supposed  to  be,  offensive  in 
its  terms?  It  is  impossible  to  suppose  that  a  sane  man 
would  have  acted  towards  one  with  whom  he  was  on  friendly 
terms  as  the  defendant  did  towards  the  plaintiff  unless  he  in 
some  way  felt  himself  aggrieved  by  the  act  of  the  other. 
If  such  an  inference,  then,  was  a  fair  and  reasonable  one, 
the  jury  had  a  right  to  draw  it,  and  the  judge  erred  in  in- 
structing them  otherwise." 

RULE  90.  — A  person  on  trial  for  one  crime  cannot  be 
presumed  guilty  because  he  has,  at  another  time, 
committed  a  similar  or  different  crime,  and  the  latter 
fact  is  not  admissible  in  evidence  against  him.^ 

•'  Suppose  the  general   character  of    one  charged  with 
crime  is  infamous  and  dciiraded  to  the  last  dcirree  —  that  his 

1  8  Jonee  (N,  C.)  L.  191  (ISCO).  «  Ellis  r.  Day,  i  Conn.  95  (1821). 

81 


482  PRESU3IPTIVE   EVIDENCE.  [llULE    99. 

life  has  been  nothing  but  a  succession  of  crimes  of  the  most 
atrocious  and  rcvoltinoj  sort  —  docs  not  the  knowledo:e  of 
all  this  inevitably  carry  the  mind  in  the  direction  of  a  con- 
clusion that  he  has  added  the  particuhir  crime  for  which  he 
is  being  tried  to  the  list  of  those  that  have  gone  before? 
Why,  then,  should  not  the  prosecutor  be  permitted  to  show 
facts  which  tend  so  naturally  to  produce  a  conviction  of  his 
guilt?  The  answer  to  all  these  questions  is  plain  and  decis- 
ive; the  law  is  otherwise;  it  is  the  law  that  the  prisoner 
shall  be  presumed  innocent  until  his  guilt  is  proved."  ^  This 
rule  is  said  by  Mr.  Stephen'*  to  be  one  of  the  most  charac- 
teristic and  distinctive  features  of  the  English  criminal  law, 
preventing,  as  it  does,  a  man  charged  with  a  particular 
offense  from  having  either  to  submit  to  imputations  which, 
in  many  cases  would  be  fatal  to  him,  or  else  to  defend 
every  action  of  his  own  life  in  order  to  explain  his  conduct 
on  the  particular  occasion  when  the  act  was  committed  with 
which  he  is  charged.  It  is  this  rule  which,  perhaps,  more 
than  any  other  rule  of  our  criminal  law,  distinguishes  the 
American  and  Eno-lish  modes  of  conductinsi;  a  criminal  trial 
from  the  continental.  In  France  the  criminal  on  trial  for  a 
particular  crime  is  confronted  with  his  whole  past  life,  and 
every  act  he  has  committed  against  the  law  is  shown  for  the 
information  of  the  jury.  The  practice  is  similar  in  Ger- 
many. The  English  State  Trials  contain  numerous  instances 
of  the  admission  of  evidence  of  this  kind.  Thus,  in  1G68, 
on  the  trial  of  Mr.  Hawkins,  a  clergyman,  for  stealing 
some  money  and  a  ring  from  one  Larimore,  Lord  Hale 
admitted  evidence  to  show  that  he  had  stolen  a  pair  of 
boots  from  a  man  named  Chilton,  and  that,  more  than  a 
year  before,  he  had  picked  the  pockets  of  one  Noble.  In 
summing  up.  Lord  Hale  said,  after  referring  to  the  cases 
of  Chilton  and  Noble:  "This,  if  true,  would  render  the 
prisoner  at  the  bar  obnoxious   to  any  jury."  ^     But  the 


1  state  V.  Lapage,  57  N.  H.  300  (1876). 

2  Ste|(h.  Ev.,  niiic  VI.,  p  195. 
«  6  How.  St.  Tr.  935. 


RULE  99.]   rUESUMI^IONS  IX  FAVOR  OF  IXNOCENCE.    483 

bcginnini^  of  the  oightconth  century  witnessed  t!ie  end  of 
tiiis  sy-stem,  and  the  American  courts  havx  never  known  it. 

Ulustratiofis. 

I.  The  question  is  whether  A.  coinmitte(J  a  crime.  The  fact  that  he  for- 
merly committed  aiiotlier  crime  of  the  same  sort,  aucl  had  a  teudeucy  to 
commit  crime,  is  irrelevaut.i 

II.  L.  was  indicted  for  the  murder  of  J.,  in  perpetratini?  a  rape  upon 
her.  Proof  that  L.  committed  a  rape  on  R.,  some  time  previous  to  the 
aUeged  crime  was  admitted.     Ildd,  error.2 

III.  S.  was  indicted  for  murdering  his  wife  by  poisoninjj,  Proof  that 
he  was  criminally  iutlraite  with  one  A.,  whose  husband  died  with  the 
same  symptoms  as  his  own  wife,  was  inadmissible.' 

IV.  R.  was  indicted  for  riot.  The  fact  that,  two  years  previous,  R. 
had  been  engaged  in  another  riot  was  inadmissible.* 

V.  C.  was  indicted  for  forcing  the  indorsement  of  V.  to  a  promissory 
note;  tlie  question  was  wlictlit-r  he  honestly  believed  he  had  authority  to 
sign  V.'s  name.  The  fact  tliat  he  had  acknowledged  to  having  made  a 
similar  unauthorized  use  of  the  name  of  G.  was  inadmissible.* 

Vr.  K.  was  indicted  for  stealing  a  bag  of  flour  with  P.;  P.  having 
turned  State's  evidence,  teslitied  that  I^.  proposed  the  theft  to  him,  and 
at  the  same  time  proposed  to  forge  notes  on  doad  men's  estates  and  steal 
negro  children.  The  admission  in  evidence  of  the  latter  proposals  was 
erroneous. '^ 

VIT.  B.  was  indicted  for  larceny  of  bank-hills  in  snatching  them  from 
the  liaud  of  R.  The  fact  th  t  B.,  the  next  day,  enticed  R.  into  an  alli-y, 
liuocked  him  down,  beat  him  and  robbed  him  of  other  bids,  is  irrel- 
evant.' 

VIII.  C.  was  indicted  for  larceny  in  stealing  a  hor-^e.  The  fact  that 
C,  the  day  previous,  stole  a  sum  of  money  is  irrelevant.^ 

IX.  R.  was  indicted  for  performing  an  alwrtion  on  B.  The  proof  that 
K.  three  years  previous,  produced  an  abortion  ou  W.,  is  inadmissible. » 

• 

I  Rex  V.  Cole,  1  Phil.  Ev.  503.  citinp  Steph.  Dip.  Kv.  IS. 

«  Stale  V.  Lapage,  57  X.  II.  215  (t87G) ;  Slate  v.  Walters, 45  Iowa,  389  (1877) ;  People 
V.  Bowcn,  40Cal.  6,54  (1875). 

s  ShatTner  v.  Commonwealth,  72  Pa.  St.  GO  (1872). 

*  Stale  V.  Reaton,  15  X.  H.  174  (1844). 

»  Peoiile  V.  Corbin,  50 X.  Y.  SiH  (1874). 

«  Kinchelow  r.  Sialo,  5  Humph.  (Tenn.)  9  (1844). 

I  Bonsall  r.  State,  35  Ind.  460  (1871) ;  People  i-.  liarnes,  43  Cal.  651  (1874). 

»  R.arton  r.  Stale,  18  Ohio,  221  (1849). 

»  Roseuweig  v.  People,  63  Barb.  (N.  V.)  634  (1872). 


484  PliESUMPTIYE   EVIDENCE.  [RULE    99. 

X.  S.  was  charged  with  the  murder  of  an  illecitimate  child  of  his 
daughter,  ol  which  he  was  the  fatlier.  Proof  that  S.  had  previously 
committed  a  rape  on  this  daughter  was  inadmissible. i 

XI.  S.  was  indicted  for  murdering  her  infant  child.  Proof  that  S. 
had  a  child  before  and  put  it  away,  is  inadmissible. 2 

*'  It  is  a  maxim  of  our  law,"  it  was  said  in  case  II.,  **  that 
every  man  is  presumed  to  be  innocent  until  he  is  proved  to 
be  guilty.  It  is  characteristic  of  the  humanity  of  all  the 
English-speaking  peoples  that  you  can  not  blacken  the  char- 
acter of  a  party  who  is  on  trial  for  an  alleged  crime.  Pris- 
oners ordinarily  come  before  the  court  and  jury  under 
manifest  disadvantages.  The  very  fact  that  a  person  is 
charged  with  a  crime  is  sufficient  to  create  in  many  minds  a 
belief  that  he  is  guilty.  It  is  quite  inconsistent  with  that 
fairness  of  trial  to  which  every  man  is  entitled,  that  the  jury 
should  be  prejudiced  against  him  by  any  evidence  except 
what  relates  to  the  issue  ;  above  all,  should  it  not  be  per- 
mitted to  blacken  his  character,  to  show  that  he  is  worthless, 
to  lighten  the  sense  of  responsib'ility  which  rests  upon  the 
jury,  by  showing  that  he  is  not  worthy  of  painstaking  and 
care,  and,  in  short,  that  the  trial  is  w^hat  the  chemists  and 
anatomists  call  experimentum  incorpore  vili." 

In  case  III.  it  was  said  :  ••  It  is  a  general  rule  that  a  dis- 
tinct crime,  unconnected  with  that  laid  in  the  indictment, 
can  not  be  given  in  evidence  against  a  prisoner.  It  is  not 
proper  to  raise  a  presumption  of  guilt  on  the  ground  that 
having  committed  one  crime  the  depravity  it  exhibits  makes 
it  likely  he  would  commit  another.  Logically,  the  com- 
mission of  an  independent  offense  is  not  proof  in  itself  of 
the  commission  of  another  crime,  yet  it  can  not  be  said  to  be 
without  influence  on  the  mind,  for,  certainly,  if  one  be 
shown  to  be  guilty  of  another  crime  equally  heinous,  it  will 
prompt  a  more  ready  belief  that  he  might  have  committed 
the  one  with  which  he  is  charged.     It  therefore  predisposes 

1  Snyder  v.  Commonwealth,  85  Pa.  St.  519  (1877) ;  and  see  Sutton  v.  Johnson,  63 
111.209  (1871). 

2  State  V.  Shuford,  69  N.  C.  487  (1873). 


RULE    99.]       rKESUMmONS   IN^   FAVOR   OF   INNOCENCE.        485 

tho  mind  of  the  juror  to  believe  the  prisoner  guilty.  To 
make  one  criminal  act  evidence  of  another,  a  connection 
between  them  must  have  existed  in  tho  mind  of  the  actor, 
linking  them  together  for  some  purpose  he  intended  to 
accomplisli,  or  it  must  bo  necessary  to  identify  tho  person 
of  the  actor  by  a  connection  which  shows  tiiat  ho  who  com- 
mitted the  one  must  have  committed  t!ie  other.  Without 
this  obvious  connection,  it  is  not  only  unjust  to  the  prisoner 
to  compel  him  to  acquit  himself  of  two  ollcnscs  instead  of 
one,  but  it  is  detrimental  to  justice  to  burden  a  trial  with 
multiplied  issues  that  tend  to  confuse  and  mislead  the  jury. 
The  most  guilty  criminal  may  be  innocent  of  other  offenses 
charged  against  him  of  which,  if  fairly  tried,  he  might 
acquit  himself." 

"  The  cases,"  it  was  said  in  case  V.,  '*  in  which  offenses 
other  than  those  charged  in  the  indictment  may  be  proved 
for  the  purpose  of  showing  guilty  knowledge  or  intent  are 
very  few,  and  this,  we  think,  is  not  one  of  them.  The  fact 
that  the  prisoner  made  an  unauthorized  use  of  the  name  of 
G.,if  established,  shows  that  he  was  morally  capable  of 
committing  the  same  offense  ajjainst  V.,  but  does  not  lesrit- 
imately  tend  to  show  that  he  did  so,  or  that  he  knew  and 
understood  that  V.'s  authority  had  been  withdrawn  or  that 
the  signature  in  question  had  been  made  with  criminal 
intent." 

It  was  said  in  case  VI. :  *♦  The  only  object  of  such  testi- 
mony, necessarily,  is  to  prejudice  the  minds  of  a  jury,  as  it 
can  by  no  possibility  establish  or  elucidate  the  crime 
charged.  We  can  well  see  how  a  jury  who,  in  tho  case 
under  consideration,  might  have  unhesitatingly  refused  to 
find  a  verdict  against  the  prisoner  upon  the  evidence  of  the 
witness  confined  within  its  legitimate  scope,  might  have  been 
misled  by  the  proof  of  the  utter  baseness  and  want  of  prin- 
ciple as  detailed  against  him." 

In  case  VIII.  it  was  said:  ''Although  the  court,  in  this 
instance,  say  that  the  evidence  was  only  admitted  for  the 
purpose  of  showing  the  intent  with  which  the  defendant  get 


486  PKESUMPTIVE    EVIDENCE.  [rULE    99. 

possession  of  the  property,  yet  wc  do  not  see  any  connec- 
tion between  the  two  transactions  that  would  establish  any 
legitimate  conclusion  to  be  drawn  as  to  that  fact.  The  only 
conclusion  that  we  can  see  that  could  fairly  be  drawn  from 
the  evidence  would  be  that  the  defendant  intended  to  steal 
the  horses  and  other  property  with  which  he  was  charged, 
because  he  was  a  thief  and  had  just  before  stolen  a  sum  of 
money.  Each  case  must  be  tried  on  its  own  merits,  and  be 
determined  by  the  circumstances  connected  with  it,  without 
reference  to  the  character  of  the  party  charged,  or  the  fact 
that  he  may  have  previously  committed  similar  crimes." 

Incase  X.  it  was  said:  ♦'  In  case  the  direct  evidence  of 
the  homicide  was  not  entirely  satisfactory  to  the  jury,  yet 
they  may  readily  have  concluded,  if  he  was  such  a  monster 
as  to  have  committed  a  rape  on  his  own  daughter,  he  had  a 
heart  sufficiently  depraved  to  commit  the  murder  charged 
against  him.  He  was  denied  that  protection,  on  his  trial, 
which  the  law  gives  to  every  person  charged  with  the  com- 
mission of  crime." 

Other  instances  may  be  given.  Thus,  whore  a  person  was 
indicted  for  burglariously  enteringa  building, evidence  that 
there  was  found  on  him  a  key  that  would  open  another  build- 
ing, is  inadmissible.^  Ajierson  indicted  for  having  stolen 
a  watch  from  one  person,  can  not  be  shown  to  have  previ- 
ously stolen  a  cloak  from  another  person.^  A  person  indicted 
for  murder  can  not  be  shown  to  have  previously  set  fire  to 
the  house  of  the  deceased.^  A  person  indicted  for  poison- 
ing A.  can  not  be  shown  to  have  poisoned  B.  several  months 
previously.*  A  person  charged  with  an  assault  to  rob  can 
not  be  shown  to  have  committed  other  assaults.®  A  per- 
son charged  with  arson  can  not  be  shown  to  have  been  pre- 
viously imprisoned  as  a  pickpocket.® 

1  Commonwealth  v.  Wilson,  2  Cuph.  (Mass.)  500  (1849). 

2  Walker's  case,  1  I.eigli  (Va.),  .574  (1820). 

»  stone  V.  State,  4  Hump.  (Tena.)  27  (1843);  and  see  Brock  v.  State,  26  Ala.  104 
(1855). 

*  Farrarw.  State,  2  Ohio  St.  54  (18.53). 

«  Coble  r.  Stale,  31  Ohio  St.  100  (KS7G). 

•  Cesure  v.  State,  1  Tex.  App.  19  (1876). 


RULE  100.]      PRESUMPTIONS   IN   FAVOR   OF   INNOCENCE.       487 

RUTjE  100.  —  But  to  prove   knowlodg^o  or  intent  (A)  or 
motive  (B),  a  collateral  crime  may  be  shown. 

Illustratio7is. 
A. 

I.  A.  is  indicted  for  utterini;  a  banlt-note,  knowing  it  to  be  forjred. 
Evidence  lliat  A.  liad  uttered  otlier  forged  notes  of  tlie  same  or  different 
kiud,  or  tliat  be  had  others  iu  his  possession,  is  admibsibie. 

II.  A.  is  charged  with  receiving  two  pieces  of  sillc  from  B,  knowing 
them  to  have  been  stolen  i)y  liim  from  C;  the  facts  that  A.  received  from 
B.  many  other  articles  stolen  by  him  from  C.  in  the  course  of  several 
months,  and  tliat  A.  pledged  all  of  them,  are  admissible,  because  rele- 
vant to  the  fact  that  A.  knew  that  the  two  pieces  of  silk  were  stolen  by  B. 
from  C.i 

III.  A.  is  charged  with  attempting  to  obtain  money  by  false  pretenses 
by  trying  to  pledge  to  B.  a  worthless  ring  as  a  diamond  ring.  The  fact 
that,  two  days  before,  A.  tried,  ou  two  separate  occasions,  to  obtain 
money  from  C.  and  D.,  respectively,  by  a  similar  assertion  as  to  the  same 
or  asimilar  ring,  and  that  on  another  occasion  on  the  same  day  he  ob- 
tained a  sum  of  money  from  E.  Ijy  pledging,  as  a  gold  chain,  a  chain 
which  was  only  gilt,  are  deemed  to  be  relevant,  as  showing  his  knowl- 
edge of  the  quality  of  the  riug.2 

IV.  W.  was  indicted  for  an  assault  with  intent  to  commit  a  rape  on 
M.  Proof  that  W.  had  previously  assaulted  M.  in  the  same  way  was 
admissible." 

v.  A.  is  indicted  for  having  in  his  possession  intoxicating  liquors,  with 
intent  to  sell  them  unlawfully;  evidence  that  he  had  been  previously  con- 
victed for  a  similar  offense  is  admissible.* 

VI.  A.  and  B.  were  indicted  for  burglary  in  the  house  of  C.  Evidence 
that  a  few  days  previous  they  agreed  to  commit  a  robbery  on  the  j)ersou 
of  C,  but  desisted  because  they  believed  he  hud  nothing  on  him  to  rob, 
was  admissible.* 

Case  rv.  is  a  good  illustration  of  the  general  rule  and  its 
exception.  The  prisoner  was  indicted  for  an  assault  with 
intent  to  commit  a  rape  on  one  Mina  Shepherd.     On  the 


1  Dunn's  Case,  1  Moody,  146;  and  see  Yarborough  v.  State,  41  Ala.  403  (1868); 
Baker  v.  6late,  4  Ark.  56  (1>4'2). 

2  Kep.  t'.  Fr.incis,  I.,  li.  2  O.  C.  R.  12S;  Reg.  v.  Cooper,  1  Q.  15.  P.  19. 

«  State  V.  Walters,  45  Iowa,  3SJ  (1S77) ;  Williams  v.  State,  8  lluiup.  (Tenn.)  5?0 
(184S). 

*  State  t'.  Neaple,  65  Me.  468  (1876). 
6  Stale  V.  Cowcll,  12  Nev.  337. 


488  PKESUMrxivE  evidence.  [rule  100. 

trial,  evidence  was  admitted  that  the  prisoner  had  previ- 
ously assaulted,  in  the  same  way,  both  Miiia  and  her  sister 
Dora.  The  prisoner  was  convicted,  and  on  appeal  the  court 
held  that  the  evidence  as  to  Mina  was  properly,  but  the  evi- 
dence as  to  Dora,  improperly,  admitted.  The  evidence 
of  the  assault  on  Mina  was  proper,  as  showing  the  intent 
with  which  the  subsequent  assault  was  made,  while  the 
evidence  as  to  Dora,  was  evidence  of  a  *'  distinct  sub- 
stantive, which  cannot  be  admitted  in  support  of  another 
offense."  So  as  to  knowledge.  To  this  class  belong,  gen- 
erally,  those  cases  in  which  the  crime  is  the  uttering  of  forged 
or  counterfeit  money,  or  the  receiving  of  stolen  goods.  It 
may  well  happen  that  a  person  may  have  in  his  possession 
a  single  counterfeit  bill  or  coin,  without  knowing  it  to  be 
such,  but  he  would  be  much  less  likely  to  do  so  twice,  and 
every  repetition  of  such  an  act  would  increase  the  proba- 
bility that  he  knew  that  the  bills  or  coin  were  counterfeit. 
But  when  it  appears  that  a  person  is  in  the  habit  of  buying 
goods  (like  old  iron)  legitimately  and  honestly,  the  wrong- 
ful act  in  receiving  one  article  is  not  competent  to  prove  a 
criminal  intent  in  receiving  another,  differing  in  time,  kind 
of  property,  the  person  from  whom  stolen,  and  the  person 
from  whom  received.^ 

B. 

I.  T.  was  indicted  for  the  murder  of  W.,  a  female.  Evidence  that  T. 
had  previously  maiutaiued  crimiual  relations  with  W.,  is  admissible. ^ 

II.  D.  was  indicted  for  the  murder  of  W.  Proof  that  D.  had  previously 
been  implicated  in  the  murder  of  E.  and  that  W.  was,  at  the  time  of  his 
death,  engaged  in  endeavoring  to  discover  the  murderers  of  E.,  is  ad- 
missible.^ 

III.  C.  is  indicted  for  murder;  to  show  a  motive  for  tlie  crime,  it  is 
proper  to  show  the  existence  of  a  secret  criminal  organization  to  which 
C.  belonged.* 


1  Coleman  v.  People,  .55  N.  T.  81  (1873). 

2  Turner  v.  Commonwealth,  86  Pa.  St.  54  (1878). 
8  Dunn  V.  State,  2  Ark.  227  (1830). 

«  Carroll  V.  Commousvealth,  84  Pa.  St.  107  (1877). 


RULE  101.]      PKESU5IPTIONS    IN   FAVOR   OF   IXXOCENCE. 


489 


IV.  C.  is  indicted  for  the  murder  of  11.  The  fact  that  C.  had  previously 
employed  11.  to  murder  one  P.  is  relevant. i 

V.  W.  WIS  indicted  for  the  murder  of  liis  wife.  Proof  of  an  adulterous 
Intercourse  between  \V.  and  another  woman  is  admissible. ^ 

In  case  IV.,  the  prisoner's  counsel  argued  that  as  P.'s 
death  was  not  the  subject  of  the  inquiry,  the  evidence  -was 
inadmissible.  But  Littledale,  J.,  said:  "I  think  I  must 
receive  the  evidence  on  the  part  of  the  prosecution  ;  it  is 
put  thus:  That  the  prisoner  and  others  employed  H.  to 
murder  P.,  and  that  ho  being  detected,  the  pri.soner  and 
others  then  murdered  H.  to  prevent  a  discovery  of  their 
own  guilt.  Now,  to  ascertain  whether  that  was  so  in  point 
of  fact,  it  is  necessary  that  I  should  receive  evidence  re- 
specting the  murder  of  P." 

RULE  101.  A  separate  crime  from  that  charged  may  be 
shown  where  it  is  necessary  to  prove  that  the  crime 
charged  was  not  accidental.' 

Illustrations. 

I.  A.  is  accused  of  setting  fire  to  his  house  in  order  to  obtain  insur- 
ance money.  The  facts  that  A.  had  previously  lived  in  two  other  houses, 
successively,  each  of  which  he  insured  and  in  each  of  which  a  lire  oc- 
curred, and  that  after  each  of  these  lires  A.  received  a  payment  from  a 
different  insurance  office,  are  relevant.* 

ir.  A.  is  employed  to  pay  the  wages  of  B.'s  laborers,  and  it  is  A.'s 
duty  to  malce  entries  in  a  boolc  showing  the  amouuts  paid  by  him.  He 
makes  an  entry  showing  that  on  a  particular  day  he  paid  more  than  ho 
really  did  pay.  The  question  is  whether  this  false  entry  was  accidental 
or  intentional.  The  fact  that  for  a  period  of  two  years  A.  made  other 
similar  false  entries  in  the  same  book,  the  false  entry  being  in  each  case 
in  favor  of  A.,  is  relevant.* 

III.  The  question  is,  whether  the  administration  of  poison  to  A.  by 
Z.,  his  wife,  in  September,  18-48,  was  accidental  or  intentional.  The  facts 
that  B-,  C.  and  1).  (A.'s  three  sons)  had  the  same  poison  administered  to 
them  in  December,  18-18,  March,  18-1'J,  and  April,  18il),  and  that  the  meals 

1  Rex  V.  Clevcs,  4  Car.  &  P.  221  (1830). 

«  St.lte  r.  Wutkins,  9  Conn.  47. 

»  State  V.  Patza,  3  L.a.  Ann.  512  (1S4S). 

*  Ko.^nia  f.  Gr.TV,  4  Tost.  &  V.  IIOI ;  Pteph.  Kv.  23. 

»  Uegma  v.  UichaiJsou,  3  Fost.  &  F.  34o;  Slci.)li.  Ev.  23. 


490  pRESUiMPrn^  evidence.  [rule  102. 

of  all  four  were  prepared  by  Z.,  are  relevant,  although  Z.  was  indicted 
separately  for  murdering  A.,  B.  and  C.  and  attempting  to  murder  D.^ 

IV.  V.  is  indicted  for  shooting  at  P.  ^Yith  intent  to  kill.  The  defense 
is  that  it  was  accidental.  Proof  that  V.  at  another  time  shot  at  P.  is  ad- 
missible.2 

V.  R.  is  indicted  for  murdering  her  infant  by  suffocating  it  in  bed. 
Proof  that  other  children  of  R.  have  died  young  is  admissible.' 

VI.  D.  is  charged  with  willfully  setting  fire  to  a  rick  by  firing  a  gun 
into  it  on  March  29th.  Proof  that  the  rick  was  also  set  on  fire  on  March 
28th,  and  that  D.  was  then  close  to  it  with  a  gun  in  his  hand,  is  admissi- 
ble, to  show  that  the  fire  on  the  29th  was  not  accidental.* 

In  cases  like  the  above  it  might  well  happen  that  a  man 
niif^ht  shoot  another  accidentally,  but  that  he  should  do  so 
twice  within  a  short  time  would  be  very  unlikely.  So  it 
might  easily  happen  that  a  man  using  a  gun  might  fire  a 
rick  once,  by  accident ;  but  that  he  should  do  it  several  times 
in  succession  would  bevery  improhuble.  So  a  person  might 
die  of  accidental  poisoning,  but  that  several  persons  should 
so  die  in  the  same  family,  at  different  times,  would  be  very 
unlikely.  So  that  a  child  should  be  suffocated  in  bed  by  its 
mother  might  happen  once,  but  several  similar  deaths  in  the 
same  family  could  not  reasonably  be  accounted  for  as  acci- 
dents. And  so  in  the  case  of  embezzlement  effected  by  means 
of  false  entries  ;  a  single  false  entry  might  be  accidentally 
made,  but  the  probability  of  accident  would  diminish  at 
least  as  fast  as  the  instances  increased.'^ 

RULE  102.  —  A  separate  crime  from  that  charged  may 
he  proved  where  it  forms  part  of  the  res  gestae. 

Illustratiojis. 

I.  A.  is  indicted  for  arson  in  setting  fire  to  a  rick,  the  property  of  B. 
Evldt-nce  of  A.'s  presence  and  conduct  at  fires  of  other  ricks  on  the  same 
night,  the  property  of  C.  and  D.  isadmissible.^ 

1  Rex  V.  Gearing,  18  L,  J.,  M.  C.  215;  Steph.  Ev.  24;  Rex  v.  Cotton,  12  Cox  0.  O. 
400;  Rex  V.  Gaiiicr,  3  Fost.  &  F.  681. 

2  Rex  V.  V.jkc,  Russ.  &  Ry.  501  (1823). 

«  Rcgi  na  V.  Eoden ,  12  Cox  C.  C.  6  ;0  (1874). 
*  Regina  r.  Dossctt,  2  Car.  &  K.  306. 
6  St.Tte  V.  I.apaare,  57  X.  11.  215  (1S70). 
0  Regma  v.  Taylor,  5  Cox  C.  C.  1^8. 


EULE  102.]      TRESUIMPTIONS    IX   FAVOR   OF    INNOCENCE.       491 

II.  S.  is  indicted  for  killing  T.  Proof  that  M.  was  killed  at  the  e&me 
time,  and  showing  the  manner  of  M.'s  injuries,  is  admissible. i 

"  It  frequently  happens  that,  as  the  evidence  of  circum- 
etances  must  be  resorted  to  for  the  purpose  of  proving  the 
commission  of  the  particular  offense  charged,  the  proof  of 
those  circumstances  involves  the  proof  of  other  acts,  either 
criminal  or  apparently  innocent.  In  such  cases  it  is  proper 
that  the  chain  of  evidence  should  be  unbroken.  If  one  or 
more  links  of  thnt  chain  consist  of  circumstances  which  tend 
to  prove  that  the  prisoner  has  been  guilty  of  other  crimes 
than  that  charged,  this  is  no  reason  why  the  court  should 
exclude  those  circumstances.  They  are  so  intimately  con- 
nected and  blended  with  tlie  main  facts  adduced  in  evidence 
that  they  can  not  bo  departed  from  with  propriety,  and 
there  is  no  reason  why  the  criminality  of  such  intimate  and 
connected  circumstances  should  exclutle  them  more  than 
other  facts  apparently  innocent.  Thus,  if  a  man  be  indicted 
for  murder  and  there  be  proof  that  the  instrument  of  death 
was  a  pistol ;  proof  that  that  instrument  belonged  to  another 
man ;  that  it  was  taken  from  the  house  the  night  preceding 
the  murder;  that  the  prisoner  was  there  on  that  night  and 
that  the  pistol  was  seen  in  his  possession  on  the  day  of  the 
murder,  just  before  the  fatal  act,  is  undoubtedly  admissible, 
although  it  has  the  tendency  to  prove  the  prisoner  guilty  of 
a  larceny.  Such  circumstances  constitute  a  part  of  the 
transaction,  and  whether  they  are  perfectly  innocent  in 
themselves,  or  involve  guilt,  makes  no  difference  as  to  their 
bearing  on  the  main  question  which  they  are  adduced  to 
prove." ^ 

There  is  another  class  of  cases  in  which  evidence  of  crim- 
inal acts  other  than  the  one  charged  is  permitted  to  bo 
shown.  These  are  prosecutions  for  sexual  offenses.  Here, 
where  the  charge  is  that  a  person  has  committed  the  crime 
with  a  particular  individual,  evidence  is  admissible  of  acts 


I  Ooramonwcalth  v.  Stnrtcvant,  117  Mass.  122  (1875). 
5  WaUtei'B  Case,  1  LeigU  (Va.),  607  (la'29). 


492  PRESUMPTIVE   EVIDENCE.  [llULE    102. 

of  indecent  familiarity  other  than  the  one  in  question,^  and 
even  proof  of  the  actual  commission  of  the  crime  at 
another  time.^  Such  evidence  is  said  to  be  received  for  the 
purpose  of  showing  an  *' adulterous  disposition."  They 
are  certainly  in  conflict  with  the  general  principles  of  the 
law. 

Where  the  prisoner  undertakes  to  prove  his  good  char- 
acter, the  prosecution  may,  to  rebut  this,  show  that  his 
character  is  bad  by  showing  his  reputation  ;  but  not,  accord- 
ing to  the  majority  of  the  cases,  particular  facts 


1  state  V.  Wallace,  9  N.  H.  515;  State  v.  Marvin,  35  N.  H.  22;  Lawson  v.  State,  20 
Ala.  66  a852) ;  State  v.  Crowley,  13  Ala.  172  (1848). 

«  Thayer  V.  Thayer,  101  Mass.  113  (1869),  overruling  Commonwealth  v.  Thrasher, 
11  Gray  (Mass.),  450;  Commonwealth  v.  Laliey,  U  Gray  (Mass.),  91  (1S59) ;  Common- 
wealth r.  Merriam,  14  Pick.  (Maes.)  518  (1833);  Commonwealth  v.  Hortou,  2  Gray 
(Mass.),  364  (1854). 


CHAPTER  XX. 

THE  PRESUMrXIONS   IX   DISFAVOR  OF  INNOCE^'CE. 

RTJL.E  103.  — Where  no  motive  for  the  commission  of  a 
crime  is  shown,  the  presumption  of  tlic  innoronce  oi 
the  suspected  person  is  strcnjfthened.  But  a  motive 
being  proved  a  presumption  of  guilt  may  arise. ^ 

In  Lake  v.  People'^  it  was  said :  "A  motive  for  the  killing 
is  sometimes  an  important  if  not  an  essential  point  on  a 
trial  for  murder.  But  those  are  cases  where  the  evidence 
of  the  killing  is  circumstantial.  Then  it  is  important  to 
show  that  the  prisoner  had  a  motive  with  a  view  to  estab- 
lishing that  he  is  the  person  who  committed  the  act.  But 
in  cases  where,  as  in  this,  the  killing  is  undisputed,  the 
question  of  motive  becomes  less  important.  For  the  mov- 
ing cause  is  often  not  very  apparent;  in  very  many  cases 
of  homicide  there  is  no  motive  discernible,  except  what 
arises  at  or  near  the  time  of  the  act.  Excited  passions  or 
a  desire  for  vengeance  for  a  real  or  imaginary  insult  or 
wrong  not  unf  requently  lead  to  the  crime.  If  a  case  should 
arise  where  it  w^as  absolutely  certain  there  was  no  motive 
whatever  for  the  commission  of  the  crime  it  would  un- 
doubtedly tend  to  show  insanity,  for  insane  persons  are 
the  only  ones  that  act  without  motives.  But  wiio  can  say 
there  is  no  motive?  "Who  can  fathom  the  mind  of  the 
accused   and    ascertain   that    there    is    no    hidden    desire 


1  Somerville  r.  State,  6  Tex.  (App.)  433  (1^70);  Smith  v.  State,  8  Tex.  (App.)  3S 
(I860,;  Yaukc  t-.  Slate,  51  Wis.  4(16  (1881);  Overstrcet  v.  Stale,  46  Ala.  30  (1S71); 
Flanagan  r.  State,  46  Ala.  703  (1871) ;  Kelsoe  v.  Slate,  47  Ala.  573  (1872).  "The  exist- 
ence or  want  of  motive  to  commit  the  crime  allcfrctl,  is  always  a  legitimate  suLject 
ol  inquiry.  In  cases  depending  upon  circumstantial  evidence,  it  is  sometimes  of 
vital  importance,  rsut  it  is  never  indispensable  to  a  conviction  that  a  motive  fur 
the  commission  of  the  crime  should  appear."  People  v.  Kobinson,  1  Park.  C.  C. 
649  (18.14). 

»  IPark.  0.0.539(1854). 

(493) 


494  PREsmiPTivE  EVIDENCE.  [rule  103. 

of  vengeance,  no  envy  or  avaricious  passion  to  be  grati- 
fied? There  is  no  rule  of  law  which  determines  what 
is  ail  adequate  motive,  even  where  it  is  necessary  to  show 
one.  One  man  will  kill  another  to  obtain  $1,000,  another 
ma}'  do  the  same  for  a  tenth  or  even  a  hundrcth  part  of  the 
sum  ;  in  each  case  it  is  adequate  in  one  sense  for  the  mind 
on  which  it  operates.  But  in  truth  and  in  another  sense  no 
amount  is  adequate  to  induce  a  reasonable  man  to  take  the 
life  of  another ;  nothing  will  induce  a  reasonable  man  to 
commit  murder ;  it  is  idle  to  talk,  therefore,  about  an 
adequate  motive  for  a  reasonable  man.  What  motive 
appears  in  the  present  case  ?  The  motive  said  to  be  assigned 
by  the  prisoner  himself  is  the  desire  on  his  part  to  obtain 
certain  papers  of  title  which  the  woman  refused  to  deliver 
up.  The  theory  of  the  prosecution  is  that  there  was  a  con- 
troversy, a  bone  of  contention  touching  the  title  to  the 
place,  which  furnishes  the  basis  of  disagreement,  quarrels, 
exasperation,  and  finally  personal  violence.  If  this  be  so, 
it  would  undoubtedly  have  a  tendency  to  show  a  motive 
such  as  may  be  fairly  supposed  to  have  induced  the  act. 
For  slight  causes  of  contest,  however  unreasonable  or  un- 
just,  may  be  made  the  ground  work  of  irritations  which  may 
be  wrought  up  by  the  untoward  circumstances  between 
irrascible  dispositions,  until  one  of  them  may  reach  the 
point  of  uncontrollable  passion,  or  in  other  words,  the  killing 
point.  But  it  is  contended  by  the  defense  that  even  admit- 
tinof  a  sufficient  motive  as  to  the  woman,  there  could  not  be 
any  occasion  for  d"estroying  the  children.  It  is  undoubtedly 
contrary  to  the  general  course  of  nature  for  a  man  to  mur- 
der inoffensive  children,  and  especially  when  they  are  his 
own.  But  there  is  another  princi[)le  recognized  as  pertain- 
ing also  to  human  nature,  and  that  is  that  hatred  for  the 
parent  is  often  extended  to  and  visited  upon  the  offspring, 
and  the  same  ungovernable  rage  which  would  destroy  the 
mother  might  impel  the  offender  also  to  involve  her  de- 
scendants in  the  common  ruin ;  upon  the  principle  that  they 
were  a  part  and  portion  of  the  detested  mother,  or  as  the 


RULE  103.]    PRESUMPTIONS  IX  DISFAVOK  OF  INNOCENCE.      495 

prisoner  expressed  it,  '  as  he  had  commenced  the  job  he 
thou^-hthe  would  finish  the  breed.'  " 

And  that  the  prisoner  has  committed  other  crimes  may  be 
shown  to  evidence  his  motive.^  "  Motive  is  a  minor  or  anx- 
ilhiry  fact  from  which,  when  established  in  connection  Avilh 
other  necessary  facts,  the  main  or  primary  fact  of  guilt  may 
be  inferred,  and  it  may  be  established  by  circumstantial  evi- 
dence the  same  as  any  other  fact.  The  proper  inquiry  when 
the  circumstance  is  offered  is,  does  it  fairly  tend  to  raise  an 
inference  in  favor  of  the  existence  of  the  fact  proposed  to 
be  proved?  If  it  does  it  is  admissible  whether  such  fact  or 
circumstance  be  innocent  or  criminal  in  its  character.  It 
does  not  lie  wMth  the  prisoner  to  object  that  the  fact  pro- 
posed as  a  circumstance  is  so  heinous  in  its  nature  and  so 
prejudicial  to  his  character  that  it  shall  not  be  used  as  evi- 
dence against  him  if  it  bears  upon  the  facts  in  issue.  The 
atrocity  of  the  act  can  not  be  used  as  a  shield  under  such 
circumstances  or  as  a  bar  to  its  legitimate  use  by  the  pros- 
ecution. If  it  could  many  criminals  might  escape  just  and 
merited  punishment  solely  by  means  of  their  hardened  and 
depraved  natures.  The  rule  appears  to  me  to  be  well  set- 
tled, both  by  elementary  writers  and  by  adjudged  cases,  that 
separate  and  distinct  felonies  may  bo  proved  upon  a  trial 
for  the  purpose  of  establishing  the  existence  of  a  motive 
to  commit  the  crime  in  question  even  though  an  indictment 
is  then  pending  against  the  prisoner  for  such  other  felonies." 

Sub-Rule  1. — A   motive  is  proved  by  showing  the  desire 

of  gain  (A),   the  gratification  of  passion  (B),  or  the 

preservation  of  reputation  f  C  ),  accomplisJted  or  attempted 

or  able  to  be  accomplislied  by  the  perpetration  of  the  crime 

charged. 

Illustrations. 


I.  A  poor  Itilian  boy  is  killed  by  a  man  iu  the  streets.     The  motive  i3 
to  sell  his  body  to  a  medical  college^ 

1  People  f.  Woofl,  3  Parl<.  fiSl  (1S58). 
«  II.  V.  Bishop,  2  Loud.  Leg.  Obd.  39. 


49(3  PRESUMPTIVE  EVIDENCE.       [rULE  103. 

II.  A.  enters  a  house  in  the  ni2:ht  and  kilH  B.,  the  owner.  A.'s  motive 
is  to  possess  himself  of  a  sum  of  money  which  B.  alwaj's  keeps  in  a  bag 
under  his  pillow. 

III.  An  old  lady  possessed  of  some  money  goes  to  board  with  B.,  who 
keeps  a  boardiuu-house.  B.  kills  her,  B.'s  motive  being  to  possess  her- 
self of  the  goods  of  the  old  lady,  she  having  no  friends  to  claim  them.^ 

IV.  P.  boarded  with  his  employer,  and  for  a  long  time  had  been  gradu- 
ally by  fraud  obtaining  the  control  of  the  business.  His  scheme  might 
be  frustrated  by  its  being  discovered  by  the  employer.  Here  is  a  motive 
in  P.  to  kill  his  employer. 2 

V.  R.  was  a  debtor  of  D.  who  held  a  bond  and  mortgage  on  his  house. 
R.  was  in  bad  circumstances.  R.  killed  D.  and  seized  the  papers.  Here 
the  motive  is  apparent.^ 

VI.  C.  poisons  her  father.  By  the  death  of  her  father,  C.  who  is  mar- 
ried, falls  into  a  large  fortune.     This  is  C.'s  motive.* 

VII.  S.  expected  to  inherit  a  large  estate  from  his  sister,  a  maiden 
lady  well  on  in  years.  Suddenly  the  sister  formed  an  attachment  for  one 
r.  and  told  S.  she  intended  to  marry  him.  A  quarrel  ensued  between 
brother  and  sister.  The  latter  subsequently  married  F.,  and  some 
months  later  S.  killed  F.^ 

VIII.  II.  is  indicted  for  murdering  his  wife.  That  by  a  will  of  her 
father  II.  was  entitled  after  her  death  to  a  part  of  the  father's  estate  is 
relevant  on  the  question  of  motive .« 

IX.  A.  Is  accused  of  having  set  fire  to  his  own  house.  It  is  proved 
that  shortly  before  tlie  fire  A.  had  insured  it  far  beyond  its  value.  A 
motive  in  A.  to  burn  his  house  may  be  properly  presumed.'' 

Case  I.  illustrates  the  rule  that  the  motive  of  unlawful 
gain  is  not  to  be  judged  by  the  amount  of  money  to  ))e  had 
from  the  commission  of  the  crime.  Here  the  body  was 
sold  to  the  authorities  of  the  college  for  less  than  fifty  dol- 
lars; and  in  another  case,  the  teeth  of  a  similar  victim 
were  dusr  out  of  his  laws  and  sold  to  a  dentist  for  three 
dollars. 


1  R.  V.  Burdock,  Best  on  Pres.,  sect.  196. 

2  R.  V.  I'atch,  Wills  Circ.  Ev.  2;;0. 

"  State  V.  Robinson,  I5urr.  Cii'.  Ev.  288.  A  similar  motive  is  found  in  Com.  v. 
Webster, tried  for  Iho  murder  of  Prut.  Parkman,  Bemis'  Report,  533;  R.  v.  Harrison, 
12  How.  St.  Tr.  803  (1G02). 

■•  R.  V.  Blandy,  8  IIow.  St.  Tr.  1118  (1752) ;  Margaret  Gottfried's  Case,  4  Leg.  Obs. 
101;  R.  V.  Stansfleld,  11  IIow.  St.  Tr.  1371. 

6  Strangwayes'  Case,  5  Leg.  Obs.  90. 

«  People  V.  Ilendrick.soii,  1  Park.  C.  C.  422  (]&53). 

1  Best  Ev.,  sect.  453;  and  see  State  v.  West,  1  Iloust.  Cr.  Gas.  332. 


RULE  103.]    PRESmrPTIOXS  IX  DISFAVOR  OF  INXOCEXCE.     497 

Case  II.  is  the  common  one  of  the  burprlar  who,  know- 
ing that  some  money  is  to  be  had,  takes  the  risk  as  to  the 
quantity  being  great  or  small. 

Case  III.  is  an  example  of  those  cases  where  the  prop- 
erty of  another  has  been  brought  into  the  criminal's  pos- 
session, and  can  be  held  there  but  for  the  victim's  presence, 
and  case  IV.  is  of  the  same  kind. 

Analogous  to  these  is  case  V. 

In  case  VI.  we  have  the  motive  which  prompts  the 
remainder-man  to  wish  the  death  of  one  Avho  holds  the  life 
estate  —  the  case  of  "  dead  men's  shoes." 

Case  VII.  shows  a  motive  of  the  same  character  —  to 
prevent  an  expected  inheritance  from  being  lost. 

In  case  VIII.  it  was  said:  "  The  evidence  was  received 
as  bearing  upon  the  question  of  motive.  If  it  tended  in 
the  least  to  show  (hat  the  prisoner  had  been  disappointed 
in  the  pecuniary  expectations  he  had  entertained  from  his 
alliance  with  the  family  in  not  being  able  to  realize  them 
until  after  the  death  of  his  wife's  mother,  and  then  not  in 
an  equal  proportion  with  the  brother;  or  if  it  tended  to 
show  how  little  property  he  might  expect  from  his  Avife  if 
she  lived  —  in  either  case  whether  the  supposed  motive  was 
resentment  or  avarice  it  was  properly  received.  It  v»-as 
competent  to  show  whether  the  i)risoner  would  gain  or  lose 
by  the  death  of  the  deceased,  and  to  compare  the  small 
amount  expected  to  be  realized  at  a  distant  day  with  the 
intermediate  burden  of  her  maintenance.  Taken  in  con- 
nection with  the  previous  testimony  tending  to  show  a  want 
of  allection  on  the  part  of  the  prisoner  toward  his  wife, 
this  evidence  was  clearly  admissible.  Considerable  latitude 
is  allowed  on  the  question  of  motive.  Just  in  pro])ortion 
to  the  depravity  of  the  mind  would  a  motive  be  trilling  or 
insignificant  which  might  prompt  to  the  commission  of  a 
great  crime.  We  can  never  say  the  motive  was  adequate  to 
the  offense ;  for  human  minds  would  differ  in  their  ideas  of 
adequacy,  accordmg  to  their  own  estimate  of  the  enormity 

32 


498  rKESU3IPTIYE    EVIDENCE.  [rULE    103. 

of  crime  and  a  virtuous  mind  would  find  no  motive  sufficient 
to  justify  the  felonious  taking  of  human  life." 


B. 

I.  K.  poisons  his  wife.  It  is  proved  that  while  his  wife  was  alive  he 
made  offers  of  marriage  to  one  Nancy  II.,  who  objects  on  the  irround 
that  he  is  married.  He  endeavors  to  get  a  divorce  from  his  wife,  but 
fails.     The  motive  is  apparent. i 

II.  K.  is  married  to  J.,  who  is  much  older  than  she.  K.  becomes 
enamored  of  P.,  J.'s  younger  brother.     K.  kills  J.  by  poisoning  him.^ 

III.  W.  is  indicted  for  the  murder  of  his  wife.  Proof  of  an  adulterous 
intercourse  between  W.  and  another  woman  is  relevant  on  the  question 
of  motive.' 

IV.  J.  is  indicted  for  poisoning  his  wife.  The  fact  that  J.,  during  the 
year  preceding  the  murder,  asked  Mrs.  B.  to  permit  him  to  visit  one 
of  her  daughters,  she  refusing  because  he  was  married,  is  admissible  as 
showing  a  motive  in  J.  for  getting  rid  of  his  wife.* 

V.  G.,  aged  twenty-two,  was  married  to  a  girl  of  the  same  age  on 
Sunday.  On  the  next  Friday  she  was  taken  sick  and  died  the  following 
Monday.  On  the  trial  of  G.  for  poisoning  his  wife,  the  facts  that  the 
marriage  was  in  haste  and  after  a  very  brief  acquaintance,  that  the 
family  of  G.  opposed  it,  and  that  G.  still  kept  the  society  of  a  former 
sweetheart,  are  relevant  on  the  question  of  motive.^ 

VI.  J.  was  indicted  for  poisoning  his  wife.  The  fact  that  she  for 
some  time  previous  had  been  compelled  by  J.  to  sleep  in  his  kitchen, 
which  was  very  open  and  stood  apart  from  the  house  in  which  J.  and  his 
children  lived,  is  admissible  as  showing  a  motive  for  her  death.* 

VII.  F.  is  engaged  to  marry  a  young  woman.  He  goes  to  a  distant 
town  to  improve  his  situation,  and  while  there  his  fiancee  makes  the 
acquaintance  of  W.,  to  whom  she  becomes  engaged.  On  January  2d  F. 
receives  a  letter  from  the  young  woman  returning  his  presents  and 
announcing  that  she  is  to  be  married  on  January  lOlh.     F.  starts  back, 


1  People  V.  Kelser,  3  Wheel.  Cr.  Cas.  40  (1817) ;  Margaret  Gottfried's  Case,  4  T.cg. 
Obs.  101;  Adams'  Case,  11  Leg.  Obs  415;  People  v.  Grunzig,  2  Edm.  Sel.  Cas.  236 
(1851). 

2  B.  V.  Xairn,  19  How.  St.  Tr.  1296;  Mrs.  Adams'  Case,  5  Leg.  Obs.  59;  Mrs. 
Spooner's  Case,  2  Chand.  Cr.  Tr.  1 ;  Pierson  v.  People,  IS  Hun,  2:39  (1879). 

o  Slate  V.  Watkins,9  Conn.  47;  Templeton  v.  People,  27  Midi.  501  (1873);  St. 
Louis  r.  State,  8  Neb.  405  (1879). 

*  Johnson  v.  State,  17  Ala.  622  (1850). 

*  People  V.  Green,  1  Park.  C.  C.  32  (1845). 
e  Johnson  v.  State,  17  Ala.  622  (1850). 


EULE  103.]    TRESUMPTIOXS  I.V  DISFAVOR  OF  IXXOCKNCE.     409 

and  on  the  inornin:?  of  January  lOlh  waylays  W.  and  kills  him.     The 
motive  here  is  jealousy.^ 

VIII.  II.  is  indebted  to  C.  C.  is  a  hard  creditor  and  refuses  his  offers 
of  compromise.  H.  complains  of  and  is  exasperaled  at  C.'s  conduct 
and  llnally  kills  him. 2 

IX.  S.  was  engaged  by  the  agent  (G.)  of  au  esfate  to  manage  it.  S. 
was  subsequently  removed  from  liis  position  by  the  agent,  and  the  ten- 
ants whom  he  had  obtained  were  likewi.se  evicted.     S.  killed  G.' 

X.  C.  is  a  litigant.  A  decree  is  rendered  against  him  which  ho  con- 
sidi  rs  unjust,  aud  for  which  he  threatens  to  kill  the  judge.  lie  after- 
wards goes  to  the  judge's  house  and  shoots  him  dead.* 

XI.  The  question  is  whether  B  or  some  one  else  is  the  murderer  of 
B.'a  wife.  The  fact  that  B  and  his  wife  had,  one  year  previous  to  the 
killing,  quarrelled  aud  separated  is  relevant  as  showing  a  motive  in  B. 

XII.  O.  wishes  to  marry.  G.'s  parents  oppose  the  match.  G.  poisons 
her  par'jnts.6 

t 

In  case  I.  it  was  said:  "  The  motive  which  induces  the 
commission  of  the  highest  offenses  and  especially  of  the 
crime  of  murder  is  always  required  to  be  ascertained.  And 
here  we  are  constrained  to  say  that  in  the  case  under  consid- 
eration, the  motive  is  but  too  clearly  found  in  the  testimony 
of  Nancy  II. ;  to  this  woman  the  convict  had  made  offers  of 
marriage  and  when  she  says  that  in  those  offers  she  gave  him 
no  great  encouragement  we  arc  led  to  the  conclusion  that 
his  marriage  to  tlie  deceased  was  the  great,  if  net  the  only 
objection;  and  experience  has  shown  that  men,  unrestrained 
by  a  sense  of  religious  and  moral  obligation  when  placed  in 
this  situation,  have  been  impelled  to  the  perpetration  of  the 
most  deadly  crimes."  And  in  a  similarcase  the  court  said  -? 
"  The  defendant  was  charged  with  the  murder  of  his  wife. 
The  marital  relation  existins:  between  them  furuishcd  a 
strong  presumption    in    favor  of  his   innocence.     In    the 


Com.  V.  Fuller,  2  Wheel.  Or.  Gas.  22.1  (1820). 
a  People  v.  How,  2  Wheel.  Or.  Gas.  223  (18'2i). 

'  Stewart's  Case,  19  Uow.  St.  Tr.  179.    Aud  see  People  v.  Breen,  4  Park.  C.  C.  3S0 
(1860). 

<  Chi<!lie's  Gnse,  9  Leg.  Obs.  ICfi. 

6  Haalam  r.  Slate,  17  .\la.  -1.51  (I-nIO). 

«  Ma'parct  Guitfricil's  Gase,  4  Log.  Ob<>,  101 ;  R.  v.  Blandy,  18  How.  St.  Tr.  1117. 

'  People  V.  lleudricksou,  1  Park.  C.  C.  415  (ISM). 


500  PRESraiPTIVE   EVIDENCE.  [llULE    103. 

absence  of  proof  to  the  contrary,  it  was  to  be  presumed  that 
he  loved  her  and  would  protect  her.  It  was  important,  there- 
fore, for  the  prosecution,  if  it  could,  to  repel  this  presump- 
tion by  proof  that  the  defendant  had  disreo;arded  the  claims 
of  connubial  duty.  For  this  purpose  evidence  tending, 
however  slightly,  to  show  an  alienation  ofaflection  —  any 
thing  from  which  a  jury  might  infer  a  desire  to  be  free 
from  the  burden  of  one  who  was  no  longer  the  object  of 
regard,  was  competent.  Suppose  it  could  have  been  proved 
that  the  defendant  had  said  that  he  hated  his  wife  and 
wished  to  be  rid  of  her,  would  any  one  doubt  that  this 
might  be  proved  to  rebut  the  presumption  that  he  loved 
her?  So  any  conduct  or  declaration  evincing  unkindness 
or  disrespect,  though  less  decisive  in  their  character  as  evi- 
dence, were  admissible  as  tending  to  show  the  state  of  the 
defendant's  feelings  towards  his  wife." 

In  case  rv.  the  ruling  of  the  Connecticut  court  in  State 
V.  Watklns  was  approved.  "  It  is  stated,"  said  the  court, 
*' that  this  decision  produced  surprise.  But  the  point  we 
have  to  discuss  is  not  the  same  that  was  decided  by  the 
Supreme  Court  of  Connecticut.  If  it  were  it  is  probable 
we  should  concur  in  opinion  with  that  court,  and  hold  also 
that  it  was  evidence  of  a  motive  for  the  murder  of  his  wife. 
In  this  case  the  prisoner  applied  to  a  woman  for  permission 
to  visit  her  daughter.  There  can  bo  no  doubt  about  the 
criminal  object  of  his  visits.  He  was  denied  the  privilege 
because  he  was  a  married  man;  there  was  no  other  objec- 
tion. Now  there  was  an  object  of  desire,  of  criminal 
desire,  but  his  wife  stood  between  him  and  it.  This  as  a 
motive  for  her  destruction  was  clearly  admissible  in  evi- 
dence, because  motives  for  every  crime  may  be  proved." 

In  case  V.  the  jury  were  told:  "Where  a  murder  is 
charged  and  the  evidence  is  wholly  circumstantial,  then  it 
is  always  peculiarly  proper  to  look  at  the  motive.  And  in 
all  cases  you  will  naturally  seek  for  the  motive.  And 
where  the  proof  is  circumstantial,  and  there  be  doubt 
about  the  circumstances,  then  it  becomes  most  important 


RULE  103.]    PKESUirPTIOXS  IX  DISFAVOR  OF  INNOCENCE.      501 

to  examine  into  the  motive.  If,  however,  tlie  evidence  of 
murder  by  design  be  direct  and  positive,  then  the  guilt  is 
established  without  looking  further.  And  in  all  these 
cases  a  question  as  to  the  adequacy  of  motive  almost 
always  arises.  It  is  claimed  generally  that  the  motive  was 
inadequate,  that  it  is  not  sufficient  to  induce  to  the  commis- 
sion of  murder.  But  all  this  must  depend  on  the  peculiar 
circumstances  of  each  case,  and  the  peculiar  character  of 
the  accused.  There  is  no  motive  which  to  the  mind  of  an 
honest  man  can  be  adequate  to  the  commission  of  crime  ; 
and  just  in  proportion  as  the  mind  is  debased  and  immoral, 
to  that  extent  the  motive  may  be  less  Avhich  induces  the 
criminal  act.  Hence,  there  can  be  no  one  rule  for  all  cases, 
as  regards  adequacy  of  motive,  it  must  depend  on  the  moral 
character  of  the  person  accused  in  each  ca<e.  The  Avorse 
it  is  the  less  the  motive  which  will  tempt  to  the  commission 
of  crime.  It  is  urged,  and  very  plausibly  on  the  part  of 
the  prisoner,  that  the  relation  existing  between  him  and  the 
deceased  forbids  the  supposition  that  he  could  have  mur- 
dered her ;  that  they  were  just  married,  and  had  barely 
entered  on  that  important  and  interesting  relation  in  life,  and 
that  it  could  not  be  supposed  under  the  circumstances  detailed 
that  the  prisoner  could  for  a  moment  have  entertained  the 
idea  of  takinjx  the  life  of  the  youns:  woman  whom  he  had 
so  recently  sworn  at  the  altar  to  love,  cherish  and  pro- 
tect. This  consideration  has  weight,  and  you  are  to  con- 
sider carefully  this  and  all  other  circumstances  favorable  to 
the  prisoner,  and  to  give  them  their  full  and  due  weight, 
comparing  them  at  the  same  time  with  the  other  evidence 
in  the  case.  It  is  urged  by  the  i)roseeution  that  the  pris- 
oner's acquaintance  with  the  girl  he  afterwards  married  was 
of  short  duration ;  that  he  had  known  her  but  a  few  weeks  ; 
that  in  fact  he  married  her  a  week  before  the  time  ap- 
pointed. And  it  is  claimed  that  the  marriage  was  not 
a^^reeable  to  other  members  of  his  family.  *  *  *  And 
it  is  claimed  on  the  part  of  the  i)rosecution  that  they  have 
proved  that  there  was  a  bad  feeling  existing  on  the  part  of 


502  PRESUMPTIVE    E^aDENCE.  [kULE    103. 

the  mother  of  the  prisoner  in  regard  to  this  marriage  of  her 
son.  »  *  *  Now  this  is  evidence  —  legitimate  evidence. 
Yt)u  are  to  say  to  what  weight  it  is  entitled.  *  *  *  It 
is  urged  by  the  prosecution,  also,  that  this  match  thus  hastily 
and  })rcmaturcly  entered  into  did  not  indicate  that  desirable 
and  abiding  affection  which  is  supposed  to  be  incompatible 
Avith  the  feeling  that  induced  the  commission  of  this  crime; 
and  that  a  former  attachment  to  Miss  Godfrey  (the  same 
one  that  M'ent  with  him  after  his  marriage,  on  the  sleigh 
ride),  still  lingered  about  the  prisoner,  and  prompted  him 
in  connection  with  his  interview  with  his  mother  to  the  com- 
mission of  the  act  for  which  he  is  arraigned.  You  must 
look  at  this  question  of  motive  and  give  it  due  weight." 

In  case  "VI.  it  was  said  :  "  This  was  evidence  tending  in 
no  inconsiderable  degree  to  prove  that  he  had  become  tired 
of  his  wife  and  hence  had  a  motive  for  putting  her  out  of 
the  way.  It  is  clear  that  the  crime  of  willful  murder  had 
been  committed  by  some  one.  This  having  been  estab- 
lished, and  the  prisoner  being  charged  with  the  crime,  every 
ground  from  which  a  motive  could  arise  may  be  proved 
against  him.  It  is  not  necessary  to  speak  at  present  of  the 
weight  of  such  a  circumstance.  With  regard  to  the  grounds 
from  which  a  motive  may  be  inferred,  we  may  remark 
that  the  law  has  never  limited  them,  and  never  can  limit 
them  in  number  or  kind,  and  it  is  immaterial  whether  the 
motive  be  wealth,  as  if  the  slayer  should  become  entitled  to 
an  estate  by  reason  of  the  death  of  the  party  slain,  or  to 
get  the  party  slain  out  of  the  way  for  any  other  purpose,  as 
to  prevent  him  from  giving  evidence  in  a  cause.  No  mat- 
ter what  the  object  in  view,  if  it  can  form  a  motive  for  the 
act  it  may  go  to  the  jury.  On  the  one  hand,  the  jury 
should  receive  it  always  with  caution ;  but  on  the  other  it 
need  not  be  such  a  ground  for  motive  as  might  be  deemed 
sufficient  to  induce  a  just  and  honest  man  to  perpetrate  a 
hiirh  crime." 

On  the  trial  of  case  IX.,  in  charging  the  jury,  the  judge 
said:   "Very  strange  causes  it  must  be  confessed  for  the 


RULE  103.]    rUESUMPTIONS  IX  DISFAVOR  OF  IXNOCENXE. 


503 


pannel's  (prisoner)  conceiving  a  violent  and  even  a  mortal 
enmity  against  Glcnure.  And  yet  nothing  is  more  c(;rtain 
than  that  violent  offense  may  be  taken  where  no  just  or  even 
plausible  cause  for  it  halh  been  given  ;  an<l  from  the  first 
murder  recorded  in  sacred  history  down  to  this  now  in  ques- 
tion often  hath  it  happened  that  wicked  men  have  hated 
their  brothers  without  a  cause,  that  is  without  a  reason  or 
just  cause,  though  there  was  always  an  occasion  or  motive, 
such  as  it  wa^,  for  the  hatred  being  conceived.  Again  it  is 
to  be  considered  that  occasions  of  offense  operate  differently 
according  to  the  education,  temper  and  character  of  the 
paity  who  meets  with  them;  and  we  have  now  heard  from 
the  evidence  in  this  trial  what  a  wrong  way  of  thinking  this 
unfortunate  pannel  is  possessed  of,  in  holding  it  to  be  a 
cause  of  mortal  enmity  that  a  man  sliould  be  removed  by 
another  from  his  farm  or  possession  which  he  hath  no  man- 
ner of  title  to  hold  or  retain ;  which  is  a  prejudice  or  delu- 
sion that  in  a  lower  degree  prevails  elsewhere,  but  seems  to 
be  in  a  particular  manner  prevalent  in  the  Highlands,  and 
was  the  cause  of  the  attempt  made  by  the  Macphersons  to 
assassinate  Glenbuckct  some  years  ago,  as  well  as  the  cause 
of  the  horrid  murder  into  which  you  are  now  inquiring." 

Case  X.  occurred  in  Scotland  in  the  year  1G89,  the  victim 
beinsf  Sir  John  Lockhart,  Lord  President  of  the  Scottish 
Court  of  Session.  Instances  of  this  kind  of  motive  are 
few,  the  most  recent  being  the  killing  of  Judge  Elliott, 
of  the  Court  of  Appeals  of  Kentucky,  by  a  man  named 
Buford,  who  had  been  unsuccessful  in  a  case  before  that 
tribunal,  three  or  four  years  ago.  More  fortunate  than 
Chislie,  the  murderer  of  the  Lord  President,  w\as  Buford. 
Chislie's  sentence  was  "  that  he  be  carried  on  a  hurdle  from 
the  Talbooth  of  Edinburgh  to  the  ^larket  Cro>s,  on  Wednes- 
day, the  3d  of  April  inst.  (he  was  tried  on  the  31st  of  the 
previous  month),  and  there,  between  tlie  hours  of  two  and 
four  of  the  afternoon,  to  have  his  right  hand  cut  olF  alive, 
and  then  to  be  hanged  upon  a  gibbet  with  the  pistol  about 
his  neck  with  which  he  committed  the  murder.     His  body 


504  PEESUMmVE   EVIDENCE.  [UULE    103. 

to  be  hung  in  chains  between  Leith  and  Edinburgh  ;  his 
right  hand  fixed  on  the  west  fort,  and  his  movable  goods  to 
be  confiscated."  Buford  was  sent  to  an  asylum,  which  he 
voluntarily  left  after  a  few  months. 

*'\Vhcn,"  it  was  said  in  case  XI.,  "  a  crime  has  been  com- 
mitted, and  circumstances  point  to  the  accused  as  the  guilty 
agent,  then  proof  of  a  motive  to  commit  the  offense,  though 
weak  and  inconclusive  evidence,  is  nevertheless  admissible. 
On  the  other  hand,  the  total  absence  of  all  motive  or  reason 
why  the  accused  should  do  the  act  must  always  operate 
strongly  in  his  favor  where  the  inquiry  is  whether  the 
accused  perpetrated  the  deed,  and  the  evidence  to  prove  his 
guilt  is  circumstantial  only.  But  it  must  be  apparent  that 
if  a  motive  be  evidence  in  such  cases  to  be  weighed  by  a 
jury,  then  evidence  tending  to  prove  the  existence  of  the 
motive  can  not  be  rejected.  It  may,  however,  be  well  to 
remark  that  a  jury  can  not  be  too  cautious  in  attaching 
importance  to  such  evidence,  for  if  the  motive  itself  is  a 
weak  and  inconclusive  circumstance,  how  much  less  con- 
clusive is  the  evidence  which  only  tends  to  prove  the  exist- 
ence of  the  motive?  Such  evidence,  however,  can  not  be 
wholly  rejected ;  it  must  go  to  the  jury,  but  they  should 
be  guarded  as  to  the  importance  they  attach  to  it.  The 
testimony  objected  to  shows  that  the  prisoner  and  the 
deceased  had  lived  together  as  husband  and  wife,  but  about 
a  year  before  the  homicide  had  quarreled  and  separated, 
and  there  was  no  proof  to  show  that  their  relations  had 
been  restored  or  that  a  reconciliation  between  them  had 
ever  taken  place.  The  evidence,  therefore,  tended  to  prove 
a  state  of  ill  feeling  or  hatred  from  which  not  unfrequently 
springs  the  spirit  of  revenge  for  either  fancied  or  real 
wrongs.  Had  there  been  no  other  circumstances  imi)Ii- 
cating  the  accused  as  the  guilty  agent,  such  proof  could 
have  had  no  lefjitiraate  influence  and  might  well  have  been 
rejected.  But  as  other  circumstances  did  exist  pointing  to 
the  prisoner  as  the  perpetrator  of  the  crime,  the  court  vio- 
lated no  rule  of  law  in  admitting  it  to  the  jury.     It  is 


RULE  103.]    rilESUMPTIOXS  IX  DISFAVOIl  OF  INNOCE^•CE.     505 

however,  urged  that  if  the  two  quarrel,  and  subsequently 
arc  reconciled  to  each  other,  the  law  will  not  presume 
that  malice  exists  between  them.  This  is  true,  and  the  law 
probably  M'ould  not  have  presumed  malice  or  even  ill 
feeling  between  the  prisoner  and  the  deceased  from  their 
former  relations  and  their  quarrel  and  separation.  But 
there  is  a  wide  difference  between  the  presumptions  of  law 
and  the  presumptions  of  fact.  The  law  draws  no  pre- 
sumption or  inference  but  from  facts  which,  unexplained, 
arc  conclusive  of  guilt.  But  presumptions  of  fact  arc  to 
be  drawn  by  the  iury,  and  every  fact  that  tends  to  i)rove 
the  guilt  or  to  prove  any  fact  that  is  evidence  of  guilt, 
however  conclusive  such  fact  may  be,  is  admissible  evi- 
dence. The  prisoner  could  have  destroyed  the  entire 
weight  of  this  evidence  by  proving  that  subsequent  to  his 
qunrrel  and  separation  from  the  deceased  a  reconciliation 
had  taken  place,  if  indeed  such  had  been  the  case.  This, 
however,  he  did  not  attempt  to  do." 

C. 

I.  U.  is  a  clergyman,  who  while  in  another  and  former  parish,  had 
seduced  a  girl  and  got  her  with  child.  One  day  this  girl  appears  ui  K.'s 
house,  demands  money,  and  threatens  to  expose  him.  R.  takes  her  to 
his  room  and  cuts  her  throat  with  a  razor. ^ 

II.  C.  is  indicted  for  the  murder  of  II.  The  fact  that  C.  had  previously 
employed  H.  to  murder  one  P.,  shows  a  motive  for  the  crime  aud  is  rele- 
vant.2 

III.  D.  is  indicted  for  the  murder  of  W.  The  fact  that  D.  had  previ- 
ously been  implicated  in  the  murder  of  E.  and  tliat  W.  was  at  the  time 
of  his  death  endeavoring  to  discover  the  murderers  of  E.  is  relevant  as 
showing  a  motive.' 

IV.  T.  is  indicted  for  the  mnrder  of  W.,  a  female.  The  fact  that  T. 
had  previously  maintained  criminal  relations  with  \V.  is  relevant  on  the 
question  of  motive.* 


1  Kicmbauer'8  Case,  3  Leg.  Obs.  242.    Aud  see  R.  v.  Richardson,  Burr.  Cir.  Ev. 
243. 

«  Rex  f.  Clcves,  4  C.  &  P.  221  (IKO). 
s  Dunn  v.  State,  2  Aik.  227  (ISo'.i). 
*  Turner  v.  Com.,  «6  Pa.  St.  64  (1878). 


506  PRESUMPTIVE  EVIDENCE.       [rULE  104. 

V.  The  question  is  whether  M.  is  the  murderer  of  R.  The  fact  that 
R.  and  ]M.  were  under  indictment  together  for  larceu}'  and  that  R.  liad 
turned  State's  evidence  before  the  murder,  is  relevant  as  showing  a 
motive  in  JM.  to  kill  R.^ 

VI.  S.  is  indicted  for  the  murder  of  L.  who  was  married  to  S.'s  sister. 
The  fact  that  S.  and  his  sister  had  been  guilty  of  incest  which  was  known 
to  L.  shows  a  motive  and  is  relevant.^ 


RULE  104. — Proof  of  opportuiiitj' possessed  by  the  ac- 
cused to  commit  the  crime  may  i*aise  an  inference 
that  he  is  the  criminal  ( A ) .  But  another  may  have 
had  a  better  opportunity  than  even  the  accused  ;  and 
the  possibility  of  such  a  circumstance  should  weaken 
the  presumption  (B). 

Illustrations. 

A. 

I.  A.  is  indicted  for  poisoning  B.  The  fact  that  A..  lives  in  the  same 
house  with  B.,  and  had  opportunities  for  tampering  with  his  food  and 
drink  is  relevant. ^ 

II.  T.  is  indicted  for  entering  U.'s  room  in  the  night  and  stealing  his 
moucj-.  The  fact  that  T.  is  a  lodger  in  the  same  house  is  relevant  as 
showing  an  opportunity.* 

III.  S.  is  found  dead  in  a  house.  R.  is  seen  coming  out  of  the  house 
with  a  bloody  sword  in  his  hand.  The  presumption  is  that  R.  has  killed 
S.    This  is  the  violent  presumption  of  Sir  Edward  Coke.* 

IV.  II.  is  indicted  for  the  murder  and  robbery  of  A.  It  is  proved 
that  some  months  before  H.  said  to  a  witness:  "Don't  you  reckon  that 
if  any  one  was  to  run  in  on  old  man  A.  he  would  get  a  handful  of  money." 
This  declaration  is  relevant  as  showing  opportunity  and  knowledge.* 

B. 

I.  One  Sunday  morning  when  the  whole  of  a  household  except  T., 
a  female  servant,  was  absent  at  church,  the  house  was  robbed,  and  a 
small  cabinet  containing  jewels  and  gold  coin  to  a  very  large  amount 


1  State  v.  Morris,  84  N.  C.  756  (1881). 

2  People  V.  Stout,  4  Park.  71  (1858). 
a  IJiirr.  Ev.  356. 

*  Jd.  .",57. 

6  Coke  Lilt.  66. 

»  State  V.  Uoward,  82  N.  C.  627  (1880). 


RULE  105.]    RESUMPTIONS  INT  DISFAVOK  OF  INNOCENCE.      507 

taken  and  carried  awaj'.  T.  maintained  tliat  no  one  had  entered  or  gone 
oiiL  of  the  house  during  the  time  of  the  family's  absence.  T.  was  con- 
victed of  the  robbery  Many  years  after  as  T.  having  served  out  her  sen- 
tence was  going  through  the  niarl<et  a  butcher  tapped  lier  on  tlie  shoulder 
and  said  in  a  half  whisper  and  an  ironical  tone  of  voice:  "Ah!  what  a 
creature  is  a  naked  woman."  T.  remembering  that  she  had  made 
that  remark  to  herself  on  the  morning  of  the  robbery,  the  butcher 
was  arrested.  He  confessed  that  his  master  served  the  hou^e  with 
meat,  and  having  forgotten  to  take  some  minced  veal  home  on  Sat- 
urday evening  as  he  should  have  done,  he  carried  it  in  a  hirge  basket  on 
Sunday  morning.  The  family  had  gone  to  church;  T.  was  upstairs,  and 
setting  the  meat  in  the  usual  place,  he  pretended  to  go  directly  out,  and 
to  shut  the  door  after  him,  instead  of  which  he  shut  himself  in  and  pull- 
ing off  his  shoes  crept  softly  up  to  the  garret  waiting  for  T.  to  come  up 
to  her  room.  T.  presently  came  up  to  change  her  clothes,  and  uncon- 
scious that  any  human  being  was  near  her,  being  entirelj'  undressed  and 
contemplating  her  naked  figure  uttered  the  exclamation  above,  which 
being  plainly  overheard  by  the  butcher,  he  immediately  went  through 
the  house  and  took  what  he  wanted,  escaping  by  the  back  door  before  T. 
was  through  her  toilet. ^ 

II.  A  female  servant  was  charged  with  having  murdered  her  mistress. 
No  persons  were  in  the  house  but  the  deceased  and  the  prisoner  and  the 
doors  and  windows  were  closed  and  secured  as  usual.  The  presumption 
being  that  no  one  else  could  have  had  access  to  the  house,  the  prisoner 
was  convicted  and  executed.  It  afterwards  appeared  by  the  confession  of 
cue  of  the  real  murderers  that  they  had  gained  admittance  into  the  htmse 
which  was  situated  in  a  narrow  street  by  means  of  a  board  thrust  across 
the  street  from  an  upper  window  of  an  opposite  house,  to  an  upper  win- 
dow of  that  in  which  the  deceased  lived;  and  that  having  committed  the 
murder  they  retreated  the  same  way  leaving  no  traces  behind  them. 2 

RULE  105.  — Proof  of  a  former  attempt  by  the  accnsed 
to  perpetrate  the  same  crime  in  the  same  or  in  a 
different  manner  raises  an  inference  of  his  guilt  as 
to  the  latter  crime. 

Illustrations. 

I.  A.  is  indicted  for  poisoning  his  wife  by  giving  hor  laudanum.  The 
fact  that  A.  had  on  a  former  occasion  given  her  laudanum,  which  made 
her  sick,  is  relevant.' 


1  Taantje's  Case,  Phill.  Circ.  Ev.  XXXTTII, 

'  r.est  Ev.,  sec.  4.5.'5. 

3  Johnson  v.  State,  17  Ala.  622  (1S50). 


508  PRESUMrTIVE  EVIDENCE.       [rULE  106. 

II.  A.  is  charged  ^vith  setting  fire  to  his  house  in  order  to  obtain  the 
insurance  money.  The  fact  that  A.  had  previously  set  fire  to  his  house, 
or  that  fire  had  previously  occurred  there,  is  relevant. ^ 

III.  Z.  is  charged  with  poisoning  A.,  her  husband.  The  fact  that  Z. 
had  previously  put  poison  in  the  food  of  the  family  is  relevant.- 

IV.  V.  is  indicted  for  shooting  at  P.  with  intent  to  kill  him.  Proof 
that  V.  at  a  previous  time  had  shot  at  P.  is  relevant.^ 

V.  D.  is  charged  with  having  willfully  set  fire  to  a  hay  stack.  The 
fact  that  on  a  previous  day  the  rick  was  seen  to  be  on  fire,  and  D.  to  be 
near  it,  is  relevant.* 

In  cnse  I.  it  was  said:  "  If  his  former  attempt  to  poison 
his  wife  had  been  proved  by  a  witness  on  the  trial,  the 
question  of  the  admissibility  of  the  evidence  would  have 
been  dilferent.  It  might  then  have  been  very  material  to 
inquire  whether  he  gave  her  the  poison  for  which  she  is 
indicted  innocently  or  criminally.  It  is  very  usual  for  the 
head  of  a  family  to  administer  medicine  in  the  domestic 
circle,  but  in  doing  so,  if  he  should  poison  the  patient,  his 
intention  would  be  very  material.  In  such  case  it  would 
deserve  consideration  if  a  former  attempt  to  poison  the 
patient  might  not  be  proved,  although  of  itself  a  distinct 
felony,  for  the  purpose  of  showing  his  guilty  knowledge  in 
the  last  instance." 

RULE  106.  — Proof  of  preparations  on  the  part  of  the 
accused  to  accomplish  the  crime  charged,  (A)  or 
to  prevent  its  discovery,  (B)  or  to  aid  his  escape,  (C)  or 
to  avert  suspicion  from  himself,  <D)  raises  a  presump- 
tion of  his  guilt. 

Illustrations. 
A. 

I.  A.  is  accused  of  the  murder  of  B.  by  poison;  C.  of  the  murder  of 
D.  by  shooting;  E.  of  committing  a  burglary;  E.  of  arson;  G.  of  coun- 
terfeiting.    The  fact  that  A.  had  previously  purchased  some  poison;  that 

1  Keg.  V.  Gray.  4  F.  &  F.  1102. 

s  11.  V.  Gearing,  13  h.  J.  (M.  0.)  215;  Mrs.  Ardcn's  Case,  5  Leg.  Obs.  50. 

3  U.  V.  Voke,  li.  &  II.  5n  (IS23). 

*  K.  V.  Dorsett,  2  C.  &  K.  306. 


RULE  lOG.]    PRESUMFTIONS  IX  DISFAVOR  OF  INNOCENCE.     509 

C.  had  bought,  borrowed,  or  stolen  a  Rim  or  pistol;  that  E.  had  pro- 
cured an  ax,  a  picklock,  or  a  dark  lantern;  that  F.  had  procured  a 
quantity  of  turpentine;  that  G.  had  made  an  instrninent  to  nianufaciure 
coin,  are  relevant  and  raise  an  inference  of  fact  of  guilt  in  each  case.* 

II.  K.  Is  accused  of  the  murder  of  A.  by  stabbing  him.  The  fact  that 
K.  had  i)revii)usly  taken  a  sword  to  a  cutter,  telling  liiui  tliat  he  wanted 
it  ground  "as  sharp  as  a  carving  knife,"  as  he  wished  to  use  it  as  a 
carving  knife,  is  relevant. ^ 

III.  F.  is  accused  of  the  murder  of  W.  by  shooting  him  with  a  pistol. 
The  fact  that  F.,  a  few  days  prior,  had  procured  a  pistol  and  had  spent 
some  time  practicing  at  a  mark  is  relevant.* 

IV.  S.  was  indicted  for  murdering  R.  by  shooting.  The  fact  that  a 
day  or  two  previous  S.  had  borrowed  a  gun  from  a  friend,  stating  that 
he  wanted  it  to  kill  deer  with,  is  relevant.* 


I.  An  inn-keeper  and  his  wife  are  accused  of  the  murder  of  a  guest. 
It  is  shown  that  the  night  the  murder  was  committed  they  sent  the  maid- 
servant out  of  the  house,  and  when  she  returned  made  her  sleep  in 
another  part  of  the  building.    This  is  relevant.' 

C. 

I.  A.  was  charged  with  the  murder  of  T.  The  fact  that  the  day  before 
the  murder  A.  had  drawn  a  quantity  of  money  from  a  bank  in  which  he 
had  it  on  deposit,  is  relevant,  as  raising  an  inference  that  he  was  pre- 
paring to  escape,  if  necessary,  from  the  country.*^ 


D. 

I.  B.  and  P.  lived  in  the  same  house,  and  the  former,  while  sitting 
one  evening  in  his  parlor,  was  shot  by  a  pistol  in  an  unseen  hand.  A 
few  evenings  before,  and  while  B.  was  away  from  home,  a  loaded  gun  or 
pistol  had  been  discharged  into  the  room  in  which  the  family  when  at 
home  usually  sat  and  passed  their  evenings.  This  shot,  P.  claimed  at 
the  time,  had  been  llred  at  him,  but  it  turned  out  to  have  been  lired  by 
him.' 

1    SCO  cases  passim.    R.  v.  Ilill,  20  IIow.  St.  Tr.  1317;  People  i*.  Peverelly,  Burr. 
Ev.  3^17. 

s  U.  V.  Corder,  Phill.  Tr.  2'21. 

»  Com.  V.  Fuller,  2  Wheel.  2-2:5  (1820)  ;  R.  v.  Barbot,  18  How.  St.  Tr.  1261  (1753). 

*  Strangcway's  Case,  5  Leg.  Obs.  91. 

»  Dray  no's  Case,  5  Leg.  Obs.  123  (1C..")4) ;  Ferrer's  Case,  19  How.  St.  Tr.  904. 

«  Adams'  Case,  11  Leg.  Obs.  415  (18U5), 

'  Patch's  Case,  Loudou,  1S06. 


510  PRESOIPTIVE    EVIDENCE.  [rULE    106. 

II.  A.  is  accused  of  the  murder  of  B.  It  is  proved  that  A.,  some  time 
previous,  ha  I  spread  a  rumor  that  ou  account  of  ill-health  B.  would  not 
be  likely  to  live  very  long.i 

III.  S.  was  charged  with  the  murder  of  T.  On  the  night  of  the  murder 
S.  left  a  friend  at  his  lodgings,  getting  him  there  secretly,  so  that  the 
people  of  the  house  would  think  S.  at  home  when  he  was  absent.  This 
is  relevant.2 

In  case  I.,  P.'s  object  in  representinr;  that  the  first  shot 
was  fired  by  himself  was  to  induce  B.,  the  servants,  and 
the  officers  of  the  law,  who  would  subsequently  be  called 
on  to  investigate  the  crime,  to  believe  that  assassins  were 
prowling  around  the  buildino;,  and  to  lay  upon  them  the 
guilt  of  the  killing  of  B. 

The  object  of  such  statements,  as  in  case  II.,  is  to  pre- 
pare the  minds  of  the  friends  and  neighbors  of  the  deceased 
for  the  event,  and  by  diminishing  surprise  to  prevent  investi- 
gation into  its  cause. 

Sub-Rule  1.  — But  Rule  106  does  not  apply  where  the 
preparations  may  have  been  innocent  (A)  or  for  the 
execution  of  something  different  tliough  illegal,  (B)  or 
where  the  crime  for  the  execution  of  ^vliich  the  pre- 
parations were  made  may  have  been  subsequently  frus- 
trated or  voluntarily  abandoned  (C). 

Illustrations. 
A. 

I.  A.  is  indicted  for  murdering  B.  by  poisoning  him.  It  appears  that 
shortly  before,  A.  purchased  a  quantity  of  poison.  This  raises  an  infer- 
ence of  guilt.  But  it  appears  that  A.  had  purchas'd  the  poison  for  no 
other  reason  than  to  kill  vermin.  This  overthrows  the  inference  of 
guilt.' 

IT.  A.  is  accused  of  the  murder  of  B.  It  is  proved  that  A.  sometime 
previous  had  spread  a  rumor  that  on  account  of  ill  health  B.  would  not 
be  likely  to  live  long.  It  turns  out  that  A.  was  really  speaking  the  con- 
viction of  his  own  mind.     This  destroys  any  inference  of  guilt.* 

Best  Ev.,  sec.  4.55. 
s  Stran.^eway's  Case,  5  Leg.  Obs.  91. 
a  r.e-t  Ev.,  sec.  456. 
*  Supra. 


EULE  107,]    PRESUMPTIONS  IN  DISFAVOR  OF  INNOCENCE.     511 

B. 

I.  A.  is  found  killed  by  a  bullet  from  a  Kun.  It  is  proved  lliat  B.,  a 
neijj;hbor,  had  pureliased  a  gun  the  day  before,  and  another  neifihbor  C, 
is  found  Willi  a  gun  in  his  possession.  The  facts  tli.it  B.  hail  pureliased 
the  gun  for  the  i)urpose  of  poacliin-j;  or  that  C.  had  stolen  the  gun  to  go 
hunting  with,  explain  the  circumstances.^ 

c. 

I.  A.  prepares  poison  with  which  to  kill  D.  Before  he  uses  it  he 
repents  of  his  crime,  and  abandons  the  idea  of  killing  1).  This  over- 
throws the  inference  arising  from  the  purchase  of  the  poison. ^ 

II.  B.  was  an  inn-keeper.  One  night  one  H.  put  up  at  B.'s  inn  having, 
before  he  retired  to  bed,  remarked  that  he  was  carrying  with  liim  a  large 
sum  of  money.  Two  guests  in  an  adjoining  room  were  wakened  in  the 
middle  of  the  night  by  groans  and  rushing  into  II. 's  room  found  II.  wel- 
tering in  blood  and  a  man  standing  over  him  with  a  dark  lantern  in  one 
hand  and  a  knife  in  the  other.  On  being  seized  the  man  turned  out  to  be 
B.,  and  he  was  tried  and  executed,  though  maintaining  his  innocence  to 
tlie  last.  Afterwards  it  was  established  that  the  murder  had  been  com- 
mitted by  H.'s  servant,  who  had  left  the  room  but  a  few  seconds  before 
B.  entered  it  for  the  same  purpose.' 


RULE  107. — Threats  or  expressions  of  ill  will  on  the 
part  of  the  accused  concerning  the  victim  are  relevant 
on  the  question  of  his  g^uilt. 

Illustrations. 

I.  W.  Is  charged  with  the  murder  of  A.  The  fact  that  W.  had  been 
heard  to  say  of  A.  that  he  "  is  a  cursed  villain  and  the  greatest  enemy  I 
Lave,"  is  relevant.* 

II.  A  son  is  accused  of  murdering  his  father.  He  has  been  heard  to 
declare  that  "  he  hated  his  father  these  six  or  seven  years."  This  is  rele- 
vant.* 

III.  A  woman  and  her  paramour  were  accused  of  murdering  her  hus- 
band. She  had  been  hcanl  to  say  of  her  husband  that  "  she  lived  a  most 
unhappy  life  with  him  and  she  wished  him  dead,  or  if  that  coulJ  not  be 
she  wished  herself  dead."     This  is  relevant.^ 

IV.  11.  is  accused  of  murdering  J.     The  fact  that  before  the  murder 


1  Best  Ev.,  eec.  45G. 

«  Best  Ev.  457. 

»  Bradford's  Case,  Phillips'  C.is.  on  Circumstaatial  Evidence,  XX\'I. 

*  People  V.  How,  2  Wliocl.  415. 

6  R.  I'.  Stand>fleld,  11  How.  .^t  Tr.  1397. 

«  li.  f.  Ogilvic,  10  How.  St.  Tr.  UOO. 


512  PRESUMPTIVE   EVIDENCE.  [eULE    107. 

n.  was  heard  to  say  of  J. :  •*  He  deserves  to  have  his  throat  cut "  is  rele- 
vant. ^ 

V.  J.  is  indicted  for  the  murder  of  W.  The  fact  that  J.  sometime 
previous  had  said  that  he  intended  to  "lay  for  W.  if  he  froze  the  next 
Saturday  night,"  is  relevant. ^ 

VI.  H.  is  charged  -with  the  murder  of  M.  H.  has  been  heard  to  say 
of  JI. :  "If  he  don't  do  as  he  has  agreed  I  will  kill  him."  This  is  rele- 
vant.^ 

YII.  A  woman  was  charged  with  the  murder  of  her  husband.  She 
had  previously  expressed  her  hatred  of  him  and  said:  "  If  she  had  a  dose 
she  would  give  it  to  him."     This  is  relevant  * 

VIII.  S.  was  found  dead  in  a  well.  It  is  proved  that  some  time  pre- 
vious T.  had  said  that  he  would  put  S.  "  in  the  well  for  two  coppers." 
This  is  relevant  on  the  trial  of  T.  for  the  murder  of  S.^ 

IX.  R.  is  indicted  for  the  murder  of  S.  Before  the  murder  R.  was 
heard  to  say  of  S. :  "I  will  kick  hell  out  of  her.  I  will  break  her  damned 
neck."     This  is  relevant.^ 

In  case  IX.  it  was  said  :  '*  Threats  are  significant.  Out 
of  the  abundance  of  the  heart  the  mouth  speaketh.  Threats 
unexecuted  amount  to  nothing,  but  when  the  thing  threat- 
ened is  done,  and  is  done  as  it  was  threatened,  then  the  fact 
of  the  threat  becomes  an  article  of  circumstantial  evidence 
tending  to  inculpate  the  person  threatening.  '  I  will  break 
her  damned  neck.'  The  dislocated  neck  of  the  victim  of 
wrath  and  violence,  her  beaten  and  bruised  body,  show  that 
what  was  threatened  was  done.  The  question  is  was  it 
done  by  the  prisoner  who  thus  threatened,  or  by  some  one 
else  from  whose  lips  no  threats  proceeded." 

Sub-Rule  1.  —  But  threat!^,  though  made  hy  the  occuKed, 
are  no  evidence  of  his  guilt  .where  a  person  other  than 
himself  may  have  carried  them  out. 

Illustrations. 
I.  A  woman  of  bad  character  one  day  in  the  open  street  threatened  a 
man  who  had  provoked  her  in  some  way  that  he  "would  get  his  hams 

1  n.  V.  Harrison,  12  How.  St.  Tr.  841. 

s  Jim  V.  Slate,  5  llumiili.  146  (1844) ;  Respublica  v.  Bob,  4  Dall.  145  (1794). 

2  People  V.  How,  2  Wheel  Cr.  Cas.  412. 
*  R.  V.  Ogilvie,  19  IIovv.  St.  Tr.  1273. 

6  Mrs.  Spooner's  Case,  2  Chand.  Or.  Tr.  14. 
8  State  V.  lieed,  62  Mc.  130  (1874). 


RULE  108.]    rilE^U.MrriONS  IX  DISFAVOR  OF  IXNOCEN'CE.     513 

cut  across  for  him  before  long."  A  short  time  afterwards  this  man  was 
found  dead  with  liis  hams  cut  across.  The  inference  was  tliat  tlie  woman 
had  killed  him,  and  slie  was  convicted  and  executed.  Afterwards  the 
true  murderer  confessed  the  crime  —  an  enemy  of  the  victim  who  hap- 
pening to  hear  the  threat  uttered  as  he  was  passing  along  the  street, 
took  advantage  of  the  circumstance  to  carry  out  his  revenge  in  the  man- 
ner described  by  the  woman,  well  assured  that  the  woman's  bad  char- 
acter would  immediately  direct  towards  her  the  attention  of  the  officers 
of  justice.^ 

11.  A  landlord's  life  is  threatened  by  exasperated  tenants  and  debtors 
The  landlord  is  subsequently  murdered  by  a  debtor  who  has  made  no 
open  threats  .2 

RULE  108. — Possession  by  the  accused  of  tlie  moans 
for  committingr  the  crime  charged  raises  a  presump- 
tion of  his  guilt  (A.)  And  tliis  presumption  may  be 
strengthoned  or  weakened  according  to  the  occupa- 
tion, cliaracter  or  sex  of  the  accused.  (B.) 

Illustrations . 
A. 

I.  A.  is  indicted  for  counterfeiting.  The  fact  that  instruments 
Intended  for  the  making  of  spurious  coin  are  found  in  A.'s  possession 
raises  an  inference  of  bis  guilt.' 

II.  A.  is  indicted  for  coining.  The  fact  that  in  A.'s  house  are  found 
Instruments  fitted  for  coining  raises  a  presumption  of  guilt.* 

III.  B.  is  indicted  for  poisoning  C.  The  fact  that  a  quantity  of  the 
same  powder  which  was  ft)und  in  the  stomach  of  C.  was  also  found  in 
the  possession  of  B.  is  relevant.* 

IV.  A.  is  indicted  for  the  murder  of  B.  The  possession  by  B.  after 
the  crime  of  the  instrument  with  which  the  deed  was  committed  raises 
an  inference  of  guilt.* 

In  case  I.  it  was  said  :  "  "When  tlic  criminal  law  writers 
say  that  you  shall  not  give  in  evidence  the  stealing  of  one 

1  Best  Ev.,  sec.  453,  note. 

2  Tliis  was  the  fail,  in  the  celebrated  case  of  the  killing  of  Parkman  by  Trof. 
Webster.    Best  Kv.  (Morg.  ed.),  sec.  i:>S,  ncte. 

8  state  f.  Ar.t()nio,2  C()n>,t.  (S.  C.)  TTGclSlC). 

*  Wuiphy'3  Case,  -1  City  Hall  llec.  42;  Comuionweallh  f.  Willlauis,  2  Gush.  5S2. 
»  Burr.  Ev.  CC,'?. 

•  E.  V.  Thurtcll,  Phil.  Tr.  7. 

83 


514  PUESmiPTIYE    EVIDENCE.  [rULE    108. 

article  upon  an  indictment  for  stealing  another,  the  reason 
is  obvious:  because  the  articles  being  separate  and  distinct 
in  their  nature  and  the  subject  of  different  felonies,  the 
party,  though  innocent,  might  be  convicted  ;  for  he  would 
not  be  prepared  to  defend  himself  against  the  larceny  of 
any  other  article  than  that  specified  in  the  indictment. 
The  rule  of  law  in  larceny  is,  that  if  an  article  which  has 
been  stolen  be  found  in  the  possession  of  one  who  will  not 
or  can  not  account  for  the  possession,  that  he  shall  be 
adjudged  to  be  the  thief.  But  it  is  contradictory  to  com- 
mon sense  as  well  as  common  justice  to  apply  a  rule  where 
a  man  had  not  had  an  opportunity  of  accounting  for  the 
possession.  But  when  a  man  is  charged  with  coining  and 
passing  coin,  can  there  be  a  more  direct  mode  of  proving 
his  guilt  than  by  producing  the  instrument  with  which  the 
coin  was  made?  Would  it  operate  as  a  surprise?  Surely 
the  connection  between  the  offense  and  the  instrument  is 
such  that  the  accused  would  naturally  be  prepared  to 
account  for  the  possession  of  the  latter  when  he  came 
prepared  to  defend  himself  against  the  former."  And 
Bay,  J.,  added:  "The  court  admitted  that  one  felony 
could  not  be  given  in  evidence  to  support  another ;  as,  for 
instance,  the  stealing  of  a  horse  could  not  be  given  in  evi- 
dence to  prove  a  man  guilty  of  stealing  a  negro,  because 
they  are  separate  and  independent  offenses,  both  suscept- 
ible of  external  proof.  But  when  a  scienter  was  to  be 
proved  it  must  be  drawn  from  circumstances.  This  spe- 
cies of  evidence  lies  deep  in  the  human  heart  beyond  the 
reach  of  mortal  ken.  To  find  out  this  knowledge,  there- 
fore, is  always  a  difficult  research,  and  it  must  be  drawn 
from  circumstances  indicative  of  the  operations  of  the 
mind,  and  at  last  a  reasonable  presumption  is  all  that  can 
be  obtained  or  acquired;  all  the  legislators  and  lawyers  on 
earth  can  go  no  further.  It  was,  therefore,  under  these 
impressions  that  the  court  permitted  these  forging  instru- 
ments found  in  the  prisoner's  possession  to  be  given  in 
evidence  to  the  jury,  not,  as  has  been  stated,  to  prove  the 


RULE  109.]    niESUMPTIONS  IN  DISFAVOR  OF  INNOCENCE.     515 

offense  of  passing  the  counterfeit  money,  but  as  a  circum- 
stanco  to  show  that  he  must  have  had  a  knowledge  of  the 
baseness  of  the  metal  of  which  the  false  dollar  was  com- 
posed. And  unless  circumstances  of  this  kind  or  those 
of  a  similar  nature  were  permitted  to  be  given  in  evidence 
to  a  jury,  all  that  class  of  cases  or  offenses  where  a  knowl- 
edge of  the  falsehood,  of  any  kind  or  nature  whatever, 
forms  or  constitutes  the  principal  ingredient  of  the  offense, 
must  fall  to  the  ground,  and  the  means  of  punishment 
must  become  useless  and  inoperative." 

B. 

I.  A.  is  Indicted  for  burglarj'.  In  A.'s  possession  are  found  a  number 
of  keys,  of  moulds  for  making  keys,  and  of  picklocks.  This  raises  an 
inference  of  guilt.  But  it  is  proved  that  A.  is  a  locksmith.  This  will, 
as  a  rule,  overcome  this  inference. ^ 

II.  Both  B.  and  D.  are  su-sipccted  of  having  poisoned  C.  In  the  pos- 
session of  both,  poison  is  found.  B.  is  a  physician  D.  is  a  woman. 
The  inference  of  guilt  from  possession  of  means  is  very  strong  as  to  D. 
and  very  weak  as  to  B.^ 

III.  F.  and  G.  are  indicted  for  having  counterfeit  money  in  their  pos- 
session with  intent  to  pass  it.  A  counterfeit  bill  is  found  in  F.'s  safe 
and  in  G.'s  pocket.  F.  is  a  respect'ble  merchant  who  lias  never  been 
charged  or  suspected  before  of  such  a  crime.  G.  is  a  black-leg  who 
belongs  to  a  gang  of  criminals.  The  inference  of  guilt  is  very  strong  in 
the  case  of  G.  and  very  weak  in  the  case  of  F.* 

IV.  A  woman  being  suspected  of  killinij  a  man  by  cutting  his  throat, 
her  house  is  searched  and  a  razor  found  in  her  possession.  This  raises 
an  inference  of  guilt.* 

RULiE  109.  —  The  possession  by  the  accused  of  the  fruits 
of  the  crime  raises  a  presumptiou  of  his  gxiilt. 

Illustrations. 
I.  M.  is  indicted  for  the  murder  of  a  woman.    'When  arrested,  prop- 


1  Burr.  Ev.  364. 

*  Id. 
»  Id. 

*  Id.,  U.  V.  Ueath,  WiUs'  Ev. 


516  PRESUMPTIVE  EVIDEXCE.       [rULE  109. 

erty  belonging  to  the  woman,  such  as  dress  and  jewelry,  is  found  in  his 
possession.    This  raises  an  inference  of  his  guilt. ^ 

II.  A  jewelry  store  is  broken  into  at  night  and  a  number  of  watches 
stolen.  A  month  later  one  of  the  watches  is  found  in  the  possession  of 
K.,  who  had  worked  for  the  watchmaker  and  was  familiar  with  the  prem- 
ises.   This  makes  a,  prima  facie  case  against  K.  for  the  burglary .2 

III.  B.  is  indicted  for  the  murder  of  C.  In  the  possession  of  B.  after 
the  crime,  are  found  C.'s  watch,  his  purse,  keys  and  papers,  also  some  of 
his  clothing.    This  raises  an  inference  of  guilt.' 

In  case  I.  it  was  said:  "Appellant  contends  that  there  is 
not  sufficient  proof  to  sustain  the  verdict ;  that  the  whole 
amount  of  proof  is  that  the  defendant  was  found  in  pos- 
session of  some  of  the  property  of  the  deceased.  We  view 
the  proof  in  a  different  light.  He  was  found  in  the  posses- 
sion of  a  large  amount  of  the  property  of  the  deceased,  and 
of  that  property  which  she  had  only  a  few  hours  before  her 
death;  not  only  in  possession  of  an  amount  of  her  prop- 
erty which  he  could  not  well  have  obtained  honestly,  but 
he  is  shown  to  have  made  false  statements  in  regard  to  it. 
At  least  if  the  statements  were  true,  he.  could  easily  have 
proved  some  of  them  to  be  so,  which  he  neither  did  nor 
attempted  to  do.  He  made  statements  in  regard  to  the 
dresses  and  jewelry  having  belonged  to  his  wife  who  he 
said  was  dead.  Yet  on  the  trial  he  made  no  attempt  to 
show  he  ever  had  a  wife  nor  any  attempt  to  find  the  woman 
who  had,  according  to  his  story,  sent  a  dress  pattern  by 
him  for  sale.  When  he  sold  the  diamonds,  instead  of  sell- 
ing them  in  their  settings,  he  took  them  out  of  the  gold 
setting  and  sold  them  separately.  This  was  not  the  con- 
duct of  an  innocent  man.  The  possession  of  property 
recently  stolen  or  taken  from  the  owner  by  the  perpetra- 
tion of  other  felony,  such  as  burglary  or  robbery,  etc.,  is 
at  least  some  evidence  against  the  person  having  possession 


1  state  V.  Millain.S  Nev.  409  (1867). 

•  Kuickcrbocker  v.  People,  43  N.  Y.  177  (1870);  Davis  v.  People,  1  Park.  C.  C.447 
(1853). 

»  Cicely  t>.  State,  13  S.  &  M.  220  (1349) ;  Drayne's  Case,  5  Leg.  Obs.  124;  Eiem- 
hauer's  Case,  3  Id.  243. 


nuLE  100.]  rRESUMmoNS  in  disfavor  of  ixxocenxe.    517 

of  the  same  that  he  is  the  felon.  If  the  property  is  such 
in  character  or  quantity  as  would  not  bo  likely  to  come 
honestly  into  the  hands  of  the  person  with  whom  it  may  1)0 
found,  as  ladies'  drosses,  jewelry,  etc.,  in  the  hands  of  a 
single  man  not  engaged  in  the  trade  or  pawiibrokiiig  busi- 
ness, this  would  greatly  strengthen  the  evidence.  If  such 
articles  were  found  in  large  quantity,  beyond  the  apparent 
means  of  the  party  to  acquire  honestly,  this  would  still 
further  increase  the  strength  of  the  evidence.  If  the  party 
should  in  addition  to  all  these  things  tell  lies  about  the 
property  and  attempt  to  dispose  of  it  under  false  pretenses 
and  representations,  this  evidence  would  seem  conclusive 
beyond  all  reasonable  doubt." 

In  case  II.  it  was  said:  *'  It  seems  almost  impossible  to 
escape  the  conclusion  that  if  possession  be  evidence  of  the 
larceny,  it  is  also  evidence  of  the  burglary.  JMere  posses- 
sion of  another's  property  proves  nothing,  until  it  is  shown 
how  it  was  taken.  If  the  taking  was  a  mere  trespass  it  is 
impossible  to  make  the  possession  evidence  of  anvthinf>- 
more  or  less  than  the  trespass.  If  a  larceny,  then  it  is  evi- 
dence of  the  larceny.  Here  it  is  entirely  clear  that  the 
only  taking  proved  was  a  burglarious  taking,  a  burglarious 
larceny  and  no  other.  The  recent  possession  thereafter  of 
the  property  thus  taken  is  evidence  that  the  possessor  bur- 
glariously took  it ;  is  evidence  of  that  crime,  as  no  other 
crime  except  a  burglarious  larceny  is  proved.  It  proves 
that  crime  or  it  proves  nothing.  Upon  such  proof  you 
might  as  well  say  that  it  proved  a  trespass  simply  as  to  say 
it  proved  only  a  larceny.  The  answer  to  each  is  that  no 
such  offense  is  proved.  The  only  oHenso  proved  being  a 
burglarious  larceny — a  burglarious  taking  —  recent  pos- 
fession  thereafter  i)roves  the  prisoner  guilty  of  that  offonse 
if  it  proves  anything,  as  no  other  offense  or  takin"-  is 
proved.  Strike  out  the  i)roof  of  the  burglary  in  this  case, 
and  the  prisoner  is  proved  guilty  of  no  crime.  Insert 
it,  and  possession  proves  him  guilty  of  that  crime,  if 
of  any:" 


518  PRESUMPTIVE   EVIDENCE.  [iJULE    109. 

Sub-Rule  1.  —  In  prosecniions  for  larceny  or  robbery,  the 
recent  possession  of  the  stolen  property  raises  the  pre-- 
sumption  that  the  possessor  is  the  thief} 

Illustrations. 

I.  W.  is  indicted  for  stealing  a  pair  of  slioes  from  M.  From  the  shoes 
being  found  in  W.'s  possession  shortly  after  they  were  stolen,  the  pre- 
sumption arises  that  W.  was  the  thief  .^ 

II.  A  silk  dress  and  a  shawl  are  stolen  from  a  house,  and  afterwards 
found  in  the  possession  of  a  man  and  concealed  in  his  hat.  He  states 
that  he  found  them.    The  presumption  is  that  he  stole  them.^ 

III.  A  number  of  sheep  were  stolen  from  C.  on  the  afternoon  of  a  cer- 
tain day.  The  same  evening  the  sheep  are  found  in  the  possession  of 
M.    The  presumption  is  that  M.  is  the  thief.* 

IV.  A  number  of  skins  are  stolen  in  Kansas.  Shortly  after  they  are 
fouud  in  the  possession  of  C.  in  Missouri.  This  raises  a  presumption 
thatC.  stole  them.^ 

V.  On  Thursday  night  B.  put  his  ox  in  the  stable  and  locked  it.  In 
the  night  the  door  was  broken  and  the  ox  stolen.  On  the  following  Fri- 
day T.  was  found  in  possession  of  the  ox  and  driving  it  along  the  road. 
This  raises  the  presumption  that  T.  stole  it.^ 


1  Price  V.  Com.,  21  Gratt.  146  (1872) ;  State  v.  ■VVikoff,  15  Mo.  174  (1851).  And  see 
illustrations  7)cis<.  In  a  few  States  it  is  held  that  from  recent  jiossession  alone  no 
presumption  of  guilt  can  arise,  and  that  this  unaccompanied  by  other  facts  will  not 
■warrant  a  conviction.  Coiikwright  v.  People,  35  111.  204  ^  People  v.  Chambers,  18  Cal. 
382;  People  v.  Ak  Ki,20  Cal.  172;  People  v.  Antonio,  27  Cal.  404;  State  v.  Hodge,  50 
N.  II.  510  (1869).  Tlie  possession  must  likewise  be  exclusive.  State  v.  Smith,  2 
Ired.  (L.)  407  (1842) ;  State  v.  Graves,  72  N.  C.  4S4  (1875). 

2  State  V.  Williams,  .54  Mo.  170  (187,'?).  And  see  Pennsylvania  v.  Myers,  Add.  .320; 
State  17.  Gray, 37  Mo.  4C3  (1866) ;  State  v.  P.ruin,  34  Mo.  540  (1864) ;  State  v.  Williams, 
9  Ired.  (L.)  140;  State  v.  Brewster,  7  Vt.  122  (1835);  Hughes  v.  State,  8  Humph.  75 
(1847);  Slate  V.  Weston,  9  Conn.  527  (18,33);  Fuller  r.  State  48  Ala.  273  (1872);  Unger 
V.  State,  43  Miss.  642  (1860) ;  Atzroth  v.  State,  10  Fla.  207  (1800) ;  Wise  v.  State,  24  Ga. 
31  (18.')8) ;  Mondragon  v.  State,  33  Tex.  480  (1870)  ;  Com.  v.  Millard,  1  Mass.  6  (1804) ; 
Simpson  v.  State,  4  Ilumjih.  450 ;  Sneathers  v.  State,  4G  Ind.  447 ;  Tuberville  v.  State, 
42  Ind.  490;  Jones  v.  State,  49  Ind.  549;  Hall  v.  State,  8  Ind  439;  Comfort  v.  People, 
54  111.  404;  People  v.  Wilson,  30  Mich.  486;  State  v.  Bennett,  3  Brcv.  514  (1815) ;  Curtis 
V.  State,  6  Cold.  11  (18GS) ;  R.v.  Smith,  Ry.  &  M.  295  (1S25) ;  State  v.  Adams,  1  Ilayw. 
(N.C.)463  (1797).  Waters  r.  People,  104  111.545  (1882);  Stokes  r.  Stale,  58  Miss.  677 
(1881) ;  State  v.  Brown,  75  Mo.  317  (1882) ;  State  v.  liulterfield,  75  l\Io.  297  (1882) ;  State 
V.  Crank,  75  Mo.  406  (1882)  ;  People  v.  Hurley,  60  Cal.  76  (1882) ;  Tucker  v.  State,  57 
Ga.  503  (1876).  From  finding  part  of  stolen  pro))erty  in  a  person's  possession  the  i)re- 
eumption  is  that  he  stole  the  whole  of  it.  Thompson  v.  People,  4  Neb.  528  (1876); 
Thompson?;.  State,  6  Neb.  102  (1877). 

8  People  V.  Preston,  1  Wheel.  41  (1822). 
*  State  V.  Merrick,  19  Mo.  398  (1.S41). 
6  State  V.  Cassidy,  12  Kas.  ."j.^O  (1874). 
«  Stale  V.  Turner,  65  N.  C.  593  (1871). 


RULE  109.]    PRESUMPTIONS  IN  DISFAVOPw  OF  INNOCENCE.     5 


19 


VI.  A  horse  is  stolen  from  C.  On  the  same  day  C.  is  discovered 
rldiii;,'  him.  This  raises  a  presumptiou  that  C.  is  the  tliief.  This  is  Luid 
Hale's  illustration. 

The  reasons  on  which  this  presumption  is  founded  are 
well  stated  in  a  learned  note  to  the  report  of  Cochin'' h  Case.'^ 
♦'As  a  general  proposition  where  a  person  is  in  possession  of 
property  it  is  reasonable  to  suppose  that  he  is  able  to  f^jive 
an  account  of  how  he  came  by  it,  and  when  the  property  in 
question  has  belonged  to  another,  it  is  in  general  not  unrea- 
sonable to  call  upon  him  to  do  so.  If  the  change  of  posses- 
sion has  been  recent  he  will  not  be  likely  to  have  forgotten, 
still  less  if  it  be  an  article  of  bulk  or  value.  If,  then,  it  be 
reasonable  under  such  circumstances  to  call  upon  the  party  in 
possession  to  account  for  such  possession,  it  can  not  be  un- 
reasonable to  presume  against  the  lawfulness  of  that  posses- 
sion when  he  is  unwilling  to  give  an  account,  or  is  unable  to 
give  a  probable  reason  why  he  can  not.  Now,  there  is  no 
reason  in  general  why  an  honest  person  should  be  unwilling, 
and  therefore  the  law  presumes  that  such  person  is  not  honest 
and  that  he  is  the  thief.  The  property  must  have  been 
taken  by  some  one.  He  is  in  possession  and  might  have 
taken  it,  and  he  refuses  to  give  such  information  upon  the 
matter  as  an  honest  man  ought." 

"  There  was  no  error  in  the  instruction,"  said  the  court 
in  case  I.,  *'  that  the  recent  possession  of  stolen  property  is 
presumptive  evidence  of  the  guilt  of  the  possessor.  Such 
possession,  unless  explained,  either  by  direct  evidence  or 
attending  circumstances  or  the  character  and  habits  of  the 
party  with  whom  the  property  is  found,  or  by  some  other 
mode  equally  satisfactory  as  to  the  innocence  of  the 
accused,  will  be  taken  as  conclusive." 

In  case  III.  it  was  said:  "  In  pro.secutions  for  larceny, 
where  the  goods  are  proved  to  have  been  stolen,  it  is  a  rule 
of  law  ai)i)licable  to  these  cases  that  possession  by  the 
accused  soon  after  they  were  stolen,  raises  a  reasonable  pre- 

1  2  TTalo  Ploas  of  the  Crown,  289. 
«  2Le\viu,  2>U  (ISJG). 


520  PRESUMPTIVE    EVIDENCE.  [llULE    109. 

sumption  of  his  guilt,  and  unless  he  can  account  for  that 
possession  consistently  with  his  innocence,  will  justify  his 
conviction.  Evidence  of  this  nature  is  by  no  means  con- 
clusive and  it  is  stronger  or  weaker  as  the  possession  is  more 
or  less  recent.  Such  evidence  is  sufficient  to  make  out  a 
prima  facie  case  on  the  part  of  the  government,  proper  to 
be  left  to  the  jury.  In  the  absence  of  all  opposing  testi- 
mony, prima  facie  evidence  in  civil  cases  becomes  conclu- 
sive and  can  not  be  disregarded  without  calling  for 
correction  on  the  part  of  the  court.  "When  by  opposing 
testimony  reasonable  doubt  is  thrown  upon  a  prima  facie 
case  of  guilt  it  can  no  longer  be  said  that  the  party  accused 
is  proved  guilty  beyond  a  reasonable  doubt.  The  jury  are 
to  judge  upon  the  effect  of  the  testimony  taken  together. 
It  was,  in  our  judgment,  too  strong  to  instruct  the  jury  that 
they  must  convict  the  accused  unless  he  had  proved  to  their 
reasonable  satisfaction  that  he  came  by  the  sheep  otherwise 
than  by  stealing.  Proof  of  good  character  may  sometimes 
be  the  only  mode  by  which  an  innocent  man  can  repel  the 
presumption  of  guilt  arising  from  the  recent  possession  of 
stolen  goods.  As  for  instance,  where  the  party  really 
guilty,  to  avoid  detection,  thrusts  unobserved  in  a  crowd  the 
article  stolen  into  the  pocket  of  another  man.  This  may 
be  done,  and  the  innocent  party  be  unconscious  of  it  at  the 
time.  And  yet  good  character  is  not  proof  of  innocence 
although  it  may  be  sufficient  to  raise  a  reasonable  doubt  of 
guilt.  The  case  linds  that  the  defendant  did  adduce  evi- 
dence tending  to  prove  that  he  bought  the  sheep  of  a 
stranger.  It  may  be  easily  conceived  that  this  proof  may 
have  been  strong  enough  to  create  in  the  minds  of  the  jury 
a  reasonable  doubt  of  his  guilt;  and  yet  fall  short  of  estab- 
lishing the  fact  beyond  a  reasonable  doubt  that  he  did  so 
purchase  them.  In  such  a  case,  the  instruction  required  a 
conviction,  although  everyone  of  the  jury  might  entertain 
reasonable  doubts  of  his  guilt." 

In  case  IV.,  after  referring  to  the  cases  in  which  it  is  held 
that  recent  iDossession  of  stolen  goods  alone  is  not  sufficient 


RULE  109.]    rRESlTMlTIONS  IN  DISFAVOR  OF  INNOCENCE.     521 

to  wan-ant  conviction,  the  court  said  :  "  Still  the  overwhflm- 
inor  wci'T-ht  of  authority  is  with  the  rule  as  stated;  and  as 
fairly  and  reasonably  interpreted  we  think  it  ought  to  stand. 
It  is  not  the  statement  of  an  absolute  and  conc-lusivc  legal 
presumption.  It  is  a  presumption  which  is  strong  or  weak 
accordingto  the  nature  of  the  property  stolen,  the  lime  and 
place  of  the  larceny,  the  time  wltiiin  which  the  possession  is 
shown,  the  manner  of  holding  and  the  various  other  condi- 
tions which,  ai)pearing  in  any  other  case,  give  occasion  for 
the  application  of  the  rule.  For  it  must  be  remembered 
that  a  jury  never  passes  upon  this  as  an  abstract  question 
isolated  from  facts  and  persons.  A  larceny  must  always  be 
proved  before  there  can  be  any  presumption  as  to  who  is 
the  thief.  Now,  when  the  larceny  is  proved,  the  possession 
may  be  shown  so  recently,  so  almost  instantaneously  there- 
after, as  to  render  it  morally  certain  that  the  possessor  was 
the  thief.  To  declare  otherwise  would  be  to  ignore  all 
those  facts  of  human  experience  and  conditions  of  human 
action  which  support  the  rules  of  evidence.  To  instruct  a 
jury  that  such  a  recent  possession  was  insufficient  to  call 
upon  the  defendant  for  an  explanation,  and  unexplained,  to 
warrant  a  conviction,  would  insult  the  intelligence  of  every 
juror.  As  the  time  between  the  larceny  and  the  possession 
is  enlarged,  the  necessity  of  additional  evidence  appears, 
and  in  some  cases  the  fact  of  possession  may  be  but  a  slight 
circumstance  indicative  of  guilt.  There  may,  of  course,  be 
cases  where  the  possession  is  so  long  after  the  larceny  that 
the  court  ought  to  instruct  the  jury  that  something  more 
than  possession  must  be  shown  to  justify  a  conviction,  but 
as  there  may  be  cases  where  that  possession  is  so  recent  as 
to  warrant  a  verdict  of  guilty,  the  court  can  not,  in  the 
absence  of  a  full  statement  of  the  facts,  say  that  the  District 
Court  erred  in  refusing  to  instruct  the  jury  contrary  to  the 
ancient  rule.  Whatever  suggestions  or  qualifications  may 
be  appro})riate,  many  cases  will  depend  u[)on  the  peculiar 
facts  of  the  case." 

In  case  V.  it  was  said:   "Where  a    person  is  found  in 


522  PRESUMPTIVE  EVIDENCE.       [rDLE  109' 

possession  of  goods,  which  have  recently  been  stolen,  there 
is  a  presumption  of  law  that  he  is  guilty  of  the  theft,  and  it 
is  not  necessary  for  the  State  to  show  any  other  sus- 
picious circumstance  accompanying  such  possession.  This 
presumption  may  be  rebutted  by  the  defendant,  but  if  he 
does  not  satisfactorily  account  for  such  possession  by  show- 
ing that  he  received  the  goods  honestly,  a  jury  ought  to 
convict  him  of  larceny." 

Sub-Rule  2.  —  But  a  reasonable  explanation  by  the  accused 
of  Ills  possession  overthrows  the  presumption,  and  casts 
the  burden  on  the  prosecution  (A)  ;  provided  the  explana- 
tion is  not  inconsistent  with  the  identity  of  the  prop- 
erty (B). 

Illustratiofis. 


I.  C.  is  indicted  for  stealing  a  piece  of  wood,  the  property  of  H.  It  is 
found  in  the  possession  of  C,  Ave  da.vs  after  it  was  taken  from  C.'s.  On 
the  trial  C.  states  that  he  bought  it  from  a  neighbor.  This  is  a  reason- 
able explanation,  and  overthrows  the  presumption.  C.  must  be  acquitted 
unless  the  prosecution  produce  the  neighbor  and  contradict  C.^ 

In  case  I.,  it  was  said:  "  In  cases  of  this  nature,  you 
should  take  it  as  a  general  principle  that  where  a  man  in 
whose  possession  stolen  property  is  found  gives  a  reasona- 
ble account  of  how  he  came  by  it,  as  by  telling  the  name  of 
the  person  from  whom  he  received  it,  and  who  is  known  to 
be  a  real  person,  it  is  incumbent  on  the  prosecutor  to  show 
that  that  account  is  false  ;  but  if  the  account  given  by  the 
prisoner  is  unreasonable  or  improbable  on  the  face  of  it, 
the  onus  of  proving  its  truth  lies  on  him.  Suppose,  for 
instance,  a  person  were  to  charge  me  with  stealing  this 
watch,  and  I  were  to  say,  I  bought  it  from  a  particular 
tradesman,  whom  I  name,  that  is  prima  facie,  a  reasonable 
account,  and  I  ought  not  to  be  convicted  of  felony,  unless 
it  is  shown  that  that  account  is  a  false  one." 

1  R.  V.  Crowhurst.  1  C.  &  K.  370  (1844) ;  E.  v.  Smith,  2  C.  &  K.  206  il845). 


RULE  109.]    PRESUMPTIONS  IN  DISFAVOR  OF  INNOCENCE.     523 

B. 

I.  A  beetle  head  is  stolen  from  the  house  of  W.  Fifteen  months 
thcnafter  it  is  found  in  E.'s  house  aud  ideutlflod  by  W.  as  his.  E.  is 
called  on  to  explain  his  possession.  If  E.  says,  "  I  can  not  remeniber 
where  I  got  it,"  this  will  bo  sufficient  and  he  must  be  acquitted.  But  if 
E.  says,  "  I  bou<;ht  this  beetle  at  a  sale  el^ht  years  ago,"  this  contradicts 
the  identity,  which  remains  a  question  on  which  E.'s  guilt  or  innocence 
depends. 1 

In  case  I.,  Akierson,  B.,  said  to  the  jury  :  *'  If  the  pris- 
oner hud  said  in  the  first  instance.  '  AVhy  really  I  can  not 
tell  where  or  how  I  got  this  beetle,'  I  should  have  said  that 
that  was  a  reasonable  statement,  and  that  he  ought  not  to 
have  been  indicted  for  stealing  it ;  in  that  case  it  being  as- 
sumed that  the  prisoner  does  not  deny  that  the  article  found 
might  once  have  been  the  property  of  the  prosecutor. 
Where,  however,  the  prisoner  is  shown  to  have  claimed  the 
thino^so  found  in  his  possession,  and  sworn  by  the  prosecu- 
tor, to  be  his  own  property  by  right  of  a  purchase  made 
eif^ht  years  ago,  and  a  continued  possession  up  to  the  pres- 
ent time,  I  should  say  that  that  was  not  so  reasonable  an 
account  of  his  possession  as  to  exempt  him  from  the  neces- 
sity of  accounting  for  it  to  the  satisfaction  of  the  jury  ;  ibr 
if  it  be  true  the  prosecutor  is  wrong  and  the  identity  of  the 
thinT  found  with  that  lost  is  disputed.  If  the  prosecutor 
should  satisfy  the  jury  that  the  beetle  in  question  was  his, 
then  the  statement  of  the  prisoner  accounting  for  his  pos- 
session of  it  must  be  false,  and  he  must  be  presumed  to 
have  stolen  it,  although  it  was  not  found  in  his  possession 
until  fifteen  months  after  the  loss.  The  question,  there- 
fore, is  simply  one  of  identity.  Is  that  beetle  the  thing 
which  was  bought  by  the  prisoner  at  the  sale  of  his  mother's 
goods  eight  years  ago  ;  or  it  is  anotlier  and  different  beetle 
which  was  in  the  possession  of  the  prosecutor  within  fifteen 
months  when  it  was  lost?  If  the  latter  be  the  case,  the 
prisoner  is  guilty." 

1  Queen  v.  Evans,  2  Cox  C.  C.  270  (1847). 


524  PEEsmiPTivE  EVIDENCE.  [rule  109. 

Sub-Rule  3. —  What  is  or  is  not  ^^  recent''  loilJtin  Sub- 
Bide  1  depends  upon  the  cost,  bulk,  or  transferability  of 
the  article  or  property  stolen.^ 

Thfit  the  question  whether  a  possession  is  recent  or  not 
must  depend  on  the  nature  of  the  property  is  clear.  In 
such  a  case  the  inquiry  naturally  arises  whether  the  goods 
are  of  a  description  in  common  use,  or  such  as  might,  in 
the  ordinary  course  of  things,  come  honestly  and  regularly 
into  the  possession  of  the  person  found  with  them,  and 
whether  they  are  of  a  nature  easily  passed  from  hand  to 
hand.  ''Suppose  the  Pitt  Diamond  or  the  Crown  Jewels 
were  stolen,  and,  after  the  lapse  of  one  or  two  years,  found 
in  the  possession  of  a  person  in  a  comparatively  humble 
station  of  life,  who  refused  to  give  any  account  of  where 
he  got  them,  would  there  be  anything  harsh  or  violent  in 
presuming  that  he  had  not  come  by  them  honestly?  But 
suppose  the  goods  lost  were  merely  a  pair  of  shoes,  or  a 
coat,  such  as  in  his  station  in  life  it  would  be  natural  and 
proper  for  the  prisoner  to  wear,  and  that  these  were  not 
traced  into  his  possession  until  after  a  few  months  from  the 
time  of  the  theft,  the  injustice  of  making  so  violent  a  pre- 
sumption as  to  deem  him  the  thief  becomes  obvious  at 
once."  "  Even  if  the  point  were  not  settled  by  authority, 
we  should  come  by  a  simple  process  of  reasoning  to  the 
conclusion  that  there  can  be  no  absolute  rule  for  drawing, 
from  recent  possession  of  stolen  property,  a  presumption 
of  guilt  without  reference  to  the  nature  of  the  property. 
The  possession  of  a  metallic  or  paper  piece  of  money  of 
the  smallest  denomination  five  days  after  it  was  stolen  might 
have  less  weight  as  evidence  than  the  possession  of  the 
library  of  Harvard  University  or  Power's  Greek  Slave, 
or  an  elephant,  five  years  after  the  larceny  of  such  property. 
It  would  ordinarily   be  more  probable  that  the  possessor 


1  What  is  a  "  recent  possession  "is  a  vexed  question,  and  depends  in  some  meas- 
ure on  1  lie  nature  of  Uie  iiroperty,  as  some  articles  pass  from  baud  to  liaud  more 
readily  than  others.    Price  v.  Com.,  21  Gratt.  846  (1872). 


RULE  109.]    rRESUMmONS  IN  DISFAVOR  OF  IXXOCEXCE.     525 

could  prove,  by  other  evidences  than  his  own  testimony, 
Low  he  obtained  the  })osses.sion  in  the  latter  case  than  in  the 
former.  It  is  equally  clear,  upon  authority  and  upon  rea- 
son, that  the  presumption  from  recent  possession  of  stolen 
property  depends  upon  the  nature  of  the  property." 

Illustrations. 

I.  A  couple  of  sacks  arc  stolen  from  a  farmer.  A  month  afterwards 
thoy  are  found  in  the  possession  of  another  person.  This  alone  can  not 
raise  au  inference  that  the  latter  stole  them.^ 

II.  Two  bolts  of  woolen  cloth  are  stolen  from  M.  Two  months  after 
they  are  found  in  the  possession  of  P.  The  presumption  is  that  F.  stole 
thcm.- 

III.  An  ax  and  a  saw  were  stolen  on  March  1st.  On  June  1st  they  are 
found  in  A.'s  possession.     This  raises  no  presumption  against  A.^ 

IV.  A  horse  disappears  from  the  possession  of  its  owner  on  Decem- 
ber 17,  1849.  On  June  20,  1850,  it  is  found  in  the  possession  of  C.  This 
does  not  raise  a  presumption  that  C.  is  the  thief.* 

V.  A  shovel  is  stolen  from  A.  in  August,  184:1.  In  March,  1842,  it  is 
found  in  C.'s  house.    This  raises  no  presumption  that  C.  stole  it.» 

VI.  A  beetle  head  is  stolen  from  W.  Fifteen  months  afterwards  it  is 
found  In  the  possession  of  E.  This  does  not  raise  an  inference  that  E.  is 
the  thief  .6 

VII.  A  Ave  dollar  bank-note  is  stolen  from  B.  and  a  couple  of  days 
after  is  found  in  the  possession  of  A.  This  alone  does  not  raise  a  pre- 
sumption that  A.  is  the  thief.' 

VIII.  A  saddle  is  stolen  from  a  shop  in  December,  1852.  In  May, 
1853,  it  is  found  in  the  possession  of  J.  This  raises  no  presumption  that 
J.  is  the  thief.** 

The  reason  for  this  limitation  to  the  rule  is  well  expressed 
in  a  learned  note  to  case  I.     '*  If  the  property,"  says  the 

1  Cockins*  Case,  2  Lcwin,  235  (1836). 

'  R.  r.  Partridge,  7  C.  &  P.  551  (1836). 

»  U.  r.  Adams,  3  C.  &  P.  G03  (ISi'J) ;  R.  v.  Ilewlett,  2  Rnas.  on  Or.  728,  note ;  R.  r. 

Dewhir8t,2  Slark.  Ev.  419,  note;  U.  r. ,2  C.  &  P.  45:)  (1820);  State  r.  Shaw,  4 

Jones  (,L.),  446  (1857) ;  State  v.  Kiuman.  7  Rich.  (L.)  497  (1354) ;  Warreu  v.  Slate,  1  O. 
Greene,  106  (1848). 

*  It.  V.  Cooper,  3  C.  &  K.  318  (1852). 

i>  U.  V.  Cruttcuden,  6  Jur.  207  (1842). 
«  (^uecn  t'.  Evans,  2  Cox  C.  C.  270  (1847). 
'  U.  I-.  Atkinson,  1  Cr.  &  Dix,  101  (1825). 

*  Jouea  V.  Stale,  26  Miss.  247  (1653). 


520  PRESUMPTIVE    EVIDENCE.  [rULE    109. 

writer,  "has  not  recently  changed  hands  ;  if  the  time  since  it 
passed  from  the  possession  of  the  rightful  owner  is  con- 
siderable, then  the  liklihood  of  his  having  forgotten  (where 
he  obtained  it  and  thus  explain  his  possession)  is  increased, 
and  with  it  the  difficulty  of  giving  an  account.  After  an 
interval  of  time  the  means  of  proof  are  lessened.  People 
move  away  from  place  to  place,  they  die,  and  little  circum- 
stances are  confounded  together,  those  of  the  time  with 
those  subsequent  or  antecedent.  The  memory  of  two  per- 
sons equally  honest  and  intending  the  truth  may  not  be 
equally  strong;  they  may  differ  from  each  other  in  the 
recollection  of  facts,  or  enmities  may  have  grown  up,  and 
the  occasion  may  be  laid  hold  of  to  gratify  a  vindictive 
feeling.  Again,  the  circumstances  in  life  of  the  party  may 
be  a  material  point  in  the  question.  A  man  engaged  in 
important  daily  avocations  in  which  his  mind  is  employed 
will  take  less  notice  of  transactions  of  a  different  nature  ; 
his  memory  will  be  less  strongly  impressed  with  particulars 
regarding  them  ;  he  will,  perhaps,  never  recur  to  them. 
Of  course,  therefore,  the  impression  will  be  less  lasting. 
It  will  become  overlaid  with  new  and  more  intereslinsr 
matter,  till  the  traces  of  it  are  lost,  and  this  effect  will  be 
likely  to  happen  more  or  less  soon  as  the  object  is  of  less 
or  more  value,  or  of  less  or  greater  bulk ;  and  as  it  may 
happen  to  be  an  article  that  is  more  or  less  frequently 
brought  under  the  party's  view.  Judges,  therefore,  hold, 
and  most  reasonably  hold,  that  a  person  is  not  to  be  called 
upon  to  give  an  account  at  a  distant  period  after  the  theft. 
The  question,  however,  of  distance  of  time  or  recent  pos- 
session must  be  at  all  times  one  of  fact  under  the  circum- 
stances, and  a  jury  under  the  judge's  direction  must 
ultimately  decide."  And  in  case  I.  Coleridge,  J.,  said  to  the 
jury  :  "  If  I  was  now  to  lose  my  watch  and  in  a  few  min- 
utes it  was  to  be  found  on  the  person  of  one  of  you,  it 
would  aiford  the  strongest  ground  for  presuming  that  you 
had  stolen  it ;  but,  if  a  month  hence  it  were  to  be  found  in 
your  possession,  the  presumption  of  your  having  stolen  it 


RULE  109.]    PRESUMPTIONS  IX  DISFAVOR  OF  INNOCENCE.     iliS? 

would  1)0  f^rcatly  weakened,  because  stolen  property  usually 
passes  through  many  hands." 

In  case  II.  it  was  urged  that  the  possession  was  not  suffi- 
ciently recent  to  raise  the  presumption.  But  Putteson,  J., 
said:  "  I  think  the  length  of  time  is  to  be  considered  with 
reference  to  the  nature  of  the  articles  which  are  stolen.  If 
they  are  such  as  pass  from  hand  to  hand  readily,  two  months 
would  bo  a  lonjx  time;  but  hero  that  is  not  so." 

In  case  rv.  Maule,  J.,  said  he  thought  there  was  no  case 
to  go  to  the  jury  —  the  possession  was  not  sufficiently 
recent.  Where  a  man  is  found  in  possession  of  a  horse 
six  or  seven  months  after  it  is  lost,  and  there  is  no  other 
evidence  against  him  but  that  possession,  he  ought  not  to  be 
called  to  account  for  it. 

In  case  v.,  Gurnoy,  B.,  said  to  the  jury:  "  I  have  fre- 
quently had  occasion  to  tell  you  gentlemen  that  when 
property  proved  to  be  stolen  is  found  shortly  after  the 
theft  in  the  possession  of  a  party,  that  person  is  to  be  pre- 
sumed to  be  the  thief,  unless  he  can  explain  satisfactorily 
how  he  came  b}^  it.  But  in  this  case  I  do  not  think  the 
possession  of  this  shovel  sufficiently  recent  to  raise  that 
presumption  against  the  prisoner.  A  period  of  six  months 
has  elapsed  since  the  property  was  lost,  in  which  time  it 
might  have  passed  through  several  hands," 

In  case  VI.  it  was  said:  "  In  cases  where  property  of 
such  insignificant  value  as  that  laid  in  this  indictment  is 
shown  to  have  been  stolen  so  long  as  fifteen  months  before 
it  is  discovered  in  the  possession  of  a  stranger,  that  person 
ought  not  to  be  called  on  to  answer  for  that  possession  on  a 
charge  of  felony,  for  it  might  reasonably  be  inferred  that 
he  had  come  honestly  by  it,  in  that  long  interval  reference 
being  always  had  to  the  character  and  value  of  the  thing 
itself." 

In  case  VTI.  it  was  said:  "The  finding  of  stolen  ]->rop- 
erty  on  the  prisoner,  recently  after  the  taking,  is  evidence 
of  the  larceny  having  been  committed  by  him,  as  it  is  of 


528  PRESUMPTIVE    EVIDENCE.  [llULE    109. 

buriilaiy,  if  the  goods  had  been  burglariously  taken,  and 
sufficient  to  call  on  him  to  account  for  his  possession,  yet 
in  a  case  of  a  bank-note  such  finding,  if  evidence  at  all,  is 
too  sliixht  to  found  a  verdict  upon,  for  the  note  passes  easily 
and  quickly  from  hand  to  hand,  without  examination,  and 
people  are  not  to  be  expected  to  mark  each  note,  or  to  be  able 
to  show  from  whom  it  has  been  received.  If,  indeed,  the 
note  were  of  a  large  amount,  it  might  be  otherwise." 

In  case  VIII.,  it  was  said:  "The  evidence  shows  that 
the  goods  were  not  found  in  the  possession  of  the  accused 
until  the  lapse  of  five  or  six  months  after  the  taking,  and 
the  question  here  presented  is  whether  such  possession, 
found  after  such  lapse  of  time,  of  itself  raises  a  presump- 
tion in  law  of  a  felonious  taking  by  the  accused.  No  defi- 
nite length  of  time  after  loss  of  goods  and  before  possession 
shown  in  the  accused,  seems  to  be  settled  as  raising  a  pre- 
sumption of  guilt.  When  the  goods  are  bulky  or  inconven- 
ient of  transmission  or  unlikely  to  be  transferred,  it  seems 
a  greater  lapse  of  time  is  allowed  to  raise  the  presumption 
than  when  they  are  light  and  easily  passed  from  hand  to 
hand,  and  likely  to  be  so  passed,  because  in  the  one  case  the 
goods  may  not  have  passed  through  many  hands  and  the 
proof  to  justify  the  possession  may,  therefore,  be  more 
simple  and  easy ;  but  in  the  latter  case  the  goods  may  very 
probably  have  come  to  the  accused  through  many  persons, 
and  their  transit,  from  the  smallness  of  their  nature  and 
value,  be  much  more  difficult  to  be  proved.  Yet  all  the  cases 
hold  that  the  possession  must  be  recent  after  the  loss,  in 
order  to  impute  guilt;  and  the  presumption  is  founded  on 
the  manifest  reason  that  where  goods  are  taken  from  one 
person  and  are  quickly  thereafter  found  in  the  pos- 
session of  another,  there  is  a  strong  probability  that 
they  were  taken  by  the  latter.  This  probability  is  stronger 
or  weaker  in  proportion  to  the  period  intervening  between 
the  taking  and  finding;  or  it  may  bo  entirely  removed  by 
the  lapse  of  such  time  as  to  render  it  not  improbable  that 


RULE  110.]    rRESUMmONS  IX  DISFAVOR  OF  INNOCENCE.     529 

the  goods  may  have  been  taken  by  another,  and  passed  to 
the  accused,  and  thus  wholly  destroy  the  i)resumption.  In 
prosecutions  for  larceny  of  chattels,  like  that  in  this  case,  it 
has  been  well  held  that  after  the. lapse  of  such  a  period  of 
time  as  in  this  case,  the  mere  fact  that  the  chattels  were 
found  in  possession  of  the  accused,  created  no  presumption 
of  criminality,  and  that  such  possession,  without  other  evi- 
dence of  any  kind  to  establish  the  charge,  is  not  even  suffi- 
cient to  put  the  party  on  his  defense.  We  recognize  the 
soundness  of  this  rule." 

RTJLiE  110, — From  proof  of  a  sudden  change  having 
taken  phvce  in  tlio  life  and  circumstances  of  the 
accused  subsequent  to  the  crime,  a  presumption  t)f  his 
guilt  may  arise. 

Illustrations. 

I.  A.,  a  rich  man,  is  found  murdered  and  robbed.  B.,  a  poor  relative, 
immcdiatel}' afterwards  com meuces  to  live  and  spend  money  like  a  rich 
man.     This  may  raise  an  inference  of  B.'s  guilt. i 

II.  An  inn-keeper  was  in  such  poor  circumstances  that  the  owne/of  the 
inn  would  not  trust  him  for  a  quarter's  rent,  nor  the  brewer  for  a  barrel 
of  beer.  One  night  a  guest,  carrying  with  him  a  large  quantity  of  money, 
is  murdered  at  the  inn.  Immediately  thereafter  the  inn-keeper  is  observed 
to  be  "flush."  His  family  commence  to  dress  well,  and  he  purchases  a 
malt-house.  This  raises  an  inference  that  the  inn-keeper  was  the  mur- 
derer.^ 

III.  A  trunk  containing  twenty-three  bank  bills  of  the  denomination  of 
$100  is  broken  into  and  the  money  stolen.  M.  is  indicted  for  the  crime. 
The  fact  that  before  the  time  of  the  robbery  M.  was  in  poor  circumstances 
and  that  afterwards  he  was  possessed  of  several'  bank  bills  of  a  large 
denomination  is  relevant,  and  raises  an  inference  against  JI.,  although 
the  bills  are  not  ideutilled  as  the  bills  stolen  from  the  trunk.* 

IV.  M.  is  indicted  for  a  burglary  and  robbery.  It  appears  that  before 
the  crime  M.  had  no  money  and  few  clothes;  that  a  short  time  afterwards 
he  bought  two  suits,  and  also  some  furniture,  and  had  money  in  his 
pocket.    This  raises  an  inference  against  M.* 


1  Best  Ev.,  sec.  459. 

2  Diayue's  Case, 6  Leg.  Obs.  123  (1G54). 

«  Com.  f.  Montgomery,  11  Mete.  53-1  (1S46). 
«  Moyo  V.  State,  66  Ga.  7A0  (ISSl). 


530  rRESOIPTIVE   EVIDENCE.  [rULE    111. 

In  case  ITI.  it  was  said :  <'  The  further  objection  is  that 
the  judge  instructed  the  jury  that  the  possession  by  the 
defendant  of  two  one  hundred  dolhir  bills,  though  not  iden- 
tified as  a  part  of  the  property  stolen,  was  still  a  circum- 
stance proper  for  their  consideration  as  tending  to  show 
laro-e  sums  of  money  in  the  hands  of  the  defendant  subse- 
quently to  the  larceny.  Such  evidence  may  be  competent. 
Its  effect  may  be  very  slight,  and,  in  many  cases,  furnish 
not  the  least  ground  for  charging  a  party.  The  possession 
of  a  large  sum  of  money,  with  strong  accompanying  cir- 
cumstances of  guilt  of  an  independent  character,  accompa- 
nied with  evidence  of  entire  destitution  of  money  before  the 
time  of  the  larceny,  may  properly  be  submitted  to  the 
jury.'-' 

RULE  111.  —  The  fact  tliat  tlie  accused  has  given  false, 
inconsistent,  or  contradictory  accounts  of  the  circum- 
stances of  the  crime  or  of  his  relation  to  the  act, 
raises  the  presumption  that  he  is  the  criminal. 

Illustrations. 

I.  D.  was  suspected  of  having  poisoned  E.  It  appeared  tbat  he  had 
stated  to  F.  that  E.  had  died  of  a  cold  induced  by  wet  feet;  to  S.  that  he 
had  ruptured  a  blood  vessel,  and  to  II.  aud  J.  that  he  had  died  from  the 
effects  of  a  venereal  complaint.  This  raises  an  inference  that  D.  was 
guilty.i 

IT.  A  person  is  murdered  in  the  night  in  a  house  in  which  C.  was  at 
the  time.  It  appears  that  C.  on  being  questioned  stated  at  one  time  that 
the  murder  was  committed  by  five  robbers  whom  she  saw  break  in.  At 
another  time  she  stated  tliat  she  was.  asleep  all  night  and  heard  no  one 
in  the  house.    This  raised  a  presumption  of  her  guilt.2 

III.  A.  is  found  in  possession  of  a  stolen  horse.  He  states  that  he 
had  purchased  it  at  D.  But  there  was  not  time  enough  for  A.  to  have 
bought  the  horse  at  D.  and  to  have  reached  the  place  where  he  was 
arrested.    This  raises  a  presumption  of  A.'s  guilt.^ 

1  R.  V.  Donellan,  Phil,  Tr.  126. 

2  state  V.  Cicely,  13  S.  &  M.  206. 

3  State  V.  Adams,  1  Hayw,  (X.  C.)  464. 


RULE  111.]    TKESUMPTIONS  IN  DISFAVOR  OF  INXOCEXCE.     531 

IV.  R.  is  indicted  for  stealing  from  dwelling-houses.  Ou  being  inter- 
rogated slie  stated  at  one  time  tiiat  slie  is  a  widow,  at  anotlier  tliat 
slie  has  a  husband;  to  one  she  says  that  the  property  is  hers,  having  pur- 
chased it  in  an  adjoining  city;  to  another  she  says  that  it  was  brought  to 
her  liouse  by  a  man  in  embarrassed  circumstances  to  couceal  it  from  his 
creditors.    This  raises  a  presumption  of  R.'s  guilt. i 

V.  A.'s  house  is  robbed  and  burned.  Banlc  bills  of  the  same  denom- 
ination as  were  taken  are  found  to  have  been  passed  by  G.  to  different 
persons  after  the  robbery.  To  one  he  stated  that  he  had  received  them 
from  the  sale  of  a  crop  of  cotton;  to  another  that  he  had  received  them 
f)r  building  a  house;  to  another  by  the  sale  of  six  negroes.  The  judge 
instructed  the  jury  on  the  trial  of  G.  for  the  robbery  that  giving  incon- 
sistent and  contradictory  accounts  in  relation  to  the  manner  in  which  he 
obtained  tlie  bills  was  evidence  to  prove  that  he  did  not  come  honestly  by 
them.    Meld,  correct.^ 

In  caso  V.  it  was  said:  "  It  is  insisted  that  tliis  instruc- 
tion was  erroneous  for  that  in  the  first  place  such  incon- 
sistent and  contradictory  declarations  do  not  in  law  prove 
more  than  that  some  of  them  are  false,  and  secondly,  that 
if  they  amount  to  proof  of  a  dishonest  acquisition  they 
do  not,  as  the  judge  intimates,  furnish  evidence  that  the 
prisoner  stole  the  bills  which  the  prosecutor  lost  or  com- 
mitted the  arson  of  which  ho  was  accused.  To  form 
a  correct  judgment  of  the  validity  of  the  objections,  it  is 
indispensable  that  we  should  first  ascertain  the  meaning  of 
the  instruction  to  which  they  apply.  Are  we  to  understand 
the  judge  as  having  declared  that  the  contradictory  state- 
ments did  prove  a  dishonest  acquisition  ;  or  only  that  they 
were  evidence  having  a  tendency  to  prove  it,  relevant  to 
that  purpose  and  fit  to  be  weighed  by  the  triers  with  a  view 
to  the  determination  qf  that  fact?  "We  can  not  doubt  but 
that  the  former  is  not,  and  that  the  latter  is  the  sense  of 
the  instruction  which  he  intended  to  jrive,  and  which  the 


1  MaryUilcy's  Case,  1  City  Hiill  Rcc.  2^  (ISIO).  And  gee  Com.  r.  Goodwin,  U 
Gray,  55  (ISjO).  The  admission  In  evidence  of  tlie  prisoner's  false  statements  made 
at  the  time  of  hi3  arrest  warrantinj^  an  inference  of  puilt,  does  not  entitle  him  to 
sho\v  that  he  had  previously,  on  other  occasioue,  given  a  different  and  true  account 
of  the  same  facts.     Id. 

^  State  V.  GiUis,  4  Dev.  (L.)  607  (ISM). 


532  pRESOiprm]  evidence.  [rule  111. 

jury  understand  his  words  to  convey.  *  *  *  Upon  an 
anxious  and  deliberate  consideration  of  all  that  has  been 
in-fT^ed  in  argument,  and  of  all  which  our  own  reflections 
can  suggest,  we  are  bound  to  declare  that  wo  see  no  error. 
Contradictory  declarations  in  respect  to  a  fact  do  not, 
indeed,  absolutely  and  directly  prove  more  than  that  all  of 
them  can  not  consist  with  the  fact.  All  may,  some  of 
them  must,  be  untrue.  If  made  by  an  individual  in  regard 
to  a  matter  of  which  he  has  positive  knowledge,  he  is  guilty 
of  falsehood.  But  the  fact  of  falsehood  once  established, 
it  becomes  in  many  cases  an  important  piece  of  evidence 
to  ascertain  other  facts  —  the  causes  which  induced  and  the 
ends  to  be  promoted  by  a  resort  to  falsehood.  There  is 
direct  testimony  of  an  arson  committed  under  circumstances 
clearly  indicating  that  a  robbery  was  at  the  same  time  per- 
petrated by  the  incendiary.  An  individual  who  before  the 
commission  of  these  crimes  was  destitute  of  money  and  of 
property  immediately  thereafter  quits  the  neighborhood, 
travels  to  a  considerable  distance  to  and  fro  without  an 
assignable  motive,  is  in  possession  of  four  bank  bills  con- 
stituting a  large  sura  of  money,  corresponding  in  amount 
and  in  the  character  and  respective  denominations  of  the 
bills  with  those  stolen  from  the  prosecutor,  and  busies  him- 
self in  converting  these  into  bills  of  another  kind,  and  of 
less  value,  for  which  he  gives  a  premium.  No  mind  capa- 
ble of  drawing  a  conclusion  from  connecting  facts  can 
hesitate  to  acknowledge  that  such  testimony  strongly 
attaches  to  this  individual,  the  charge  of  the  theft  and  arson. 
But  in  addition  to  these  facts  there  is  another  circumstance. 
In  the  course  of  his  wanderings  he  gave  many  relations  to 
different  persons  at  different  places,  with  respect  to  the 
manner  in  which  this  money,  so  strangely  in  his  possession 
and  so  strangely  used,  has  been  acquired  by  him,  and  these 
relations  are  wholly  inconsistent  with  each  other.  The 
connection  between  such  conduct  and  the  motives  for  it, 
the  consciousness  which  it  indicates  and  the  interests  which 


RULE  112.]  ruESUMrTiONS  IN  DISFAVOR  OF  i:;nocenci\    533 

arc  intended  to  be  served  by  it,  arc  unquestionalj)}'  matters 
well  meriting  the  consideration  of  those  whose  grave  duty 
it  is  by  all  the  means  in  their  power,  to  ascertain  the  truth 
of  the  imputed  charge.  Falsehood,  diversified  in  its 
forms,  but  always  repeated  on  this  point,  clearly  tends  to 
show  a  consciousness  of  dishonest  acquisition  and  a  solici- 
tude to  embarrass  inquiry  and  to  prevent  detection.  That 
it  proves  dishonest  acquisition  is  not  an  inference  of  law, 
nor  was  it  the  instruction  of  the  judge;  but  that  it  is  rele- 
vant to  that  fact,  and  is  evidence  for  that  purpose,  fit  to  bo 
considered  and  weighed  by  the  jur}',  seems  well  warranted 
by  reason,  observation  and  experience.  AVhether  by  itself 
or  in  connection  with  the  other  matters  testified,  it  produces 
a  conviction  so  settled  and  undoubtlng  as  to  induce  the  jury 
to  infer  that  fact  as  once  proved  to  exist,  must  be  left,  as 
it  has  been  left,  to  their  integrity,  their  intelligence  and 
their  acquaintance  with  the  ordinary  concerns  of  human 
life." 

RULE  112 .  —  The  fact  that  the  accused  had  attempted  to 
stifle  or  thwart  tlic  investigation  of  the  crime  raises 
the  presumption  that  he  is  the  criminal. 

Illustrations. 

I.  S.  is  suspected  of  liaving  poisoned  T.  It  appears  that  S.  has  tried 
in  every  way  to  prevent  the  body  of  T.  from  being  exhumed  and  exam- 
ined.   This  raises  an  inference  of  S.'s  guilt. ^ 

II.  S.  disappeared  while  living  in  R.'s  house.  R.  oeing  suspected  of 
murdering  him,  and  it  being  proposed  to  take  up  the  basement  floor, 
objected  stronc:ly,  urging  that  if  the  floor  was  taken  up  the  house  would 
fall  doT.-n.  The  ollicers  of  the  law  persisted  and  the  body  of  S.  was 
found  underneath  the  floor.    A  strong  inference  of  R  's  guilt  arose .^ 

III.  C.  being  suspected  of  the  murder  of  D.,  it  is  sought  to  compare 
her  feet  with  certain  foot-prints.  C.  resists,  and  has  to  be  conipellcd 
by  force  to  put  her  feet  m  the  tracks.  This  raises  a  presumption  of 
guilt  in  C.3 


1  R.  r.  St.nnsfleld,  11  now.  St.  Tr.  1402. 

2  State  f.  Uobinson,  Burr.  Kv.  462. 
8  Slate  i:  Cicely,  13  S.  &  M.  20o. 


534  rnESU3iPTivE  evidence.  [rule  113. 

RUX-E  113.  —  Fear,  exhibited  by  the  accused,  raises  a 
presumption  of  guilt  (A).  But  no  presumption 
can  arise  where  the  fear  may  be  on  account  of 
another  act  or  crime  (B). 

Ulustrations. 

A. 

I.  T.  comes  into  a  to^vn  with  a  horse  and  immediately  employs  an 
auctioneer  to  sell  it.  While  the  sale  is  going  on  T.  is  observed  to  look 
excited  and  apprehensive,  and  on  receiving  the  purchase-money  leaves 
the  place  at  once,  and  on  subsequently  meeting  the  anctioneer  endeavors 
to  avoid  him.    The  conduct  of  T.  raises  a  presumption  of  his  guilt.^ 

II.  A.  being  accused  of  the  murder  of  B.  shows  a  great  repugnance  to 
looking  at  the  dead  body  of  B.    This  is  relevant.^ 

III.  S.  disappeared  while  living  with  R.,  and  suspicion  was  cast  upon 
E. because  he  refused  to  sleep  in  the  house  thereafter, giving  as  aground 
that  one  of  his  children  had  died  there  suddenly.  Subsequently  the 
body  of  S.  was  found  buried  under  the  basement  floor  of  the  house.  R. 
was  convicted.^ 

IV.  A.  is  indicted  for  poisoning  his  wife.  The  fact  that  A.  after  the 
poison  had  been  administered  to  his  wife  called  at  a  neighbor's  house 
and  stopped  there  some  time,  during  which  time  he  was  unusually 
silent  and  serious,  is  relevant.* 

<' These  circumstances,"  said  the  court  in  case  I., 
*'  strongly  manifest  a  consciousness  on  the  part  of  the  pris- 
oner that  some  flagrant  wrong  had  been  committed  by  him, 
and  an  apprehension  that  it  was  known;  which  wrong 
probably  related  to  his  possession  and  disposition  of  the 
horse.  We  are  told  by  an  early  and  most  venerable 
authority  that  the  wicked  fly  when  no  one  pursues  ;  and 
we  are  told  elsewhere  that  conscience  makes  men  cow- 
ards. If  the  corpus  delicti  hadi  been  proved  —  that  is  that 
the  horse  had  been  stolen  —  much  less  than   the  circum- 


1  Tyner  V.  State,  5  Humph.  383  (1844). 

2  11.  V.  Stewart,  19  How.  St.  Tr.  156;   Mrs.  Spooner's  Case,  2  Chand.  Am.  Cr.  Tr. 
13;  K.  V.  Ogilvif!,  19  How.  St.  Tr.  12S4. 

2  State  V.  Robinson,  Buit.  Ev.  4G2. 
*  Johnson  v.  State,  17  Ala.  622  (1830). 


RULE  113.]    PRESUMPTIONS  IX  DISFAVOR  OF  INNOCENCE.     535 

stances  proved  would  have  e.^tabli.^jbed  that  the  prisoner  was 
the  thief." 

Ill  case  IV.,  it  was  said :  *'  We  can  not  say  that  facts  such 
as  silence  which  indicated  unusual  seriousness  at  such  a 
moment  are  inadmissible  as  evidence  tending  in  some  degree 
to  show  the  prisoner's  guilty  knowledge  of  the  condition  of 
his  wife,  or  to  show  his  crime  itself.  Dou])tless,  such  a 
circumstance  by  itself  should  weigh  but  little,  and  it  should 
be  received  with  great  caution,  but  we  can  not  say  that  it 
was  wholly  inadmissible.  Roscoe,  in  speaking  of  the  cau- 
tion Avith  which  certain  evidence  should  be  received,  says: 
'  Not  unfrec^uently  a  presumption  is  founded  from  circum- 
stances which  would  not  have  existed,  as  a  ground  of  crim- 
ination, but  for  the  accusation  itself;  such  as  the  conduct, 
demeanor  and  expressions  of  a  suspected  person  when  scru- 
tinized by  those  who  suspect  him '.^  If  the  conduct,  de- 
meanor and  expression  of  the  accused  subsequent  to  the 
crime  may  be  proved  as  evidence  of  conscious  guilt,  al- 
though to  be  received  cautiously,  it  is  not  obvious  why  the 
same  indications  at  or  about  the  time  of  the  crime  may  not 
be  proved  by  the  same  purpose.  A  flight  is  universally  ad- 
mitted as  evidence  of  the  guilt  of  the  accused,  though  not 
conclusive.  If  we  take  a  flight  as  evidence  of  fear,  and 
fear  as  evidence  of  a  known  cause  of  dread  or  apprehension, 
we  arrive  thus  at  the  inference  of  crime.  But  it  is  sufficient, 
perhaps,  for  all  practictd  purposes  to  regard  flight  as  im- 
mediate evidence  of  crime,  because  it  betrays  conscious 
guilt.  In  this  instance  then  we  take  the  flight,  a  thing  in 
itself  blameless  and  innocent  as  evidence  of  conscious  guilt, 
a  necessary  consequence  of  the  crime  itself,  and  the  con- 
scious guilt  of  which  the  flight  was  evidence  is  proof,  in  its 
turn,  of  the  crime.  In  this  instance,  therefore,  it  is  certain 
that  the  law  admits  evidence  of  the  party's  conduct  merely 
to  ))r()ve  his  conscious  guilt,  which  is  proof  of  crime.  Kow 
this  conscious  guilt  is  altogether  internal,  but  the  law  allovrs 

1  Roscoc  Crim.  Ev.  15. 


536  TKESUMPTIVE   EVIDENCE,  [llULE    113. 

that  j)roof  of  it  which  consists  of  outward  signs.  Is  a  flight 
the  only  outward  evidence  of  conscious  guilt?  So  far  from 
it,  any  indications  of  it  arising  from  the  conduct,  demeanor, 
or  expressions  of  the  part}'^  are  legal  evidence  against  him. 
The  law  can  never  limit  the  number  or  kind  of  such  indica- 
tions. In  the  present  case  it  may  be  presumed,  because  this 
is  consistent  with  the  facts  stated,  that  the  poison  was  pre- 
jiared  by  or  before  nine  o'clock  a.  m.,  on  Sunday,  and  that 
preparations  were  made  for  it  to  be  given  to  the  deceased  ; 
and  it  is  consistent  to  suppose  that  this  was  expected  to  be 
done,  and  was  done  immediately.  About  nine  o'clock  a.  m., 
on  Sunday  the  prisoner  appeared  at  the  house  of  W.,  a 
mile  and  a  half  from  his  own  residence,  and  remained  there 
until  about  an  hour  after  sunset.  If  guilty  he  had  already 
prepared  for  the  destruction  of  his  victim,  the  poison  it  is 
probable  was  already  producing  its  effects,  and  he  was 
aware  of  the  fact.  That  was  peculiarly  the  occasion  for 
conscious  eruilt  to  reveal  some  evidence  of  the  crime.  If  he 
were  unusually  serious  or  brooding  in  his  mind  or  impressed 
with  fear,  these  were  admissible  evidences  of  the  crime, 
upon  the  same  principle  that  conscious  guilt  may  be  proved 
by  a  flight." 

B. 

I.  The  house  of  A.,  a  bachelor,  is  searched  for  a  political  prisoner 
thought  to  be  hidden  there.  A.  makes  no  objection  to  the  search  until 
they  come  to  his  bed-room.  A  person  being  there  discovered  in  A.'s  bed, 
A.  endeavors  by  all  devices  to  prevent  that  person's  identity  from  being 
discovered.  But  A.'s  fear  arises  not  on  account  of  the  person  being  the 
prisoner,  but  because  the  party  in  his  bed  is  a  woman  of  rank  and  repu- 
tation with  whom  he  is,  unknown  to  everybody,  carrying  on  a  Uason.^ 

II.  An  habitual  thief  is  taken  into  custody  for  a  robbery  committed  on 
A.  The  thief,  imagining  that  an  attempt  to  rob  B.  has  been  discovered, 
displays  great  confusion  and  fear.  Here  conduct  raising  an  inference  of 
guilt  is  caused  by  the  recollection  of  another  crime,  for  he  has  never 
even  seen  A.^ 


1  In  this  case,  which  is  often  cited,  A.'s  presence  of  mind  saved  himself  and  her 
by  uncovering  enough  of  lier  person  to  the  oflicer  to  indicate  the  sex  without 
betraying  llie  individual.    Best  Ev.,  sec,  400. 

2  Best  Ev.,  sec.  4C(i 


RULE   114.]    niESUMrXIOXS  IX  DISFAVOR  OF  IXNOCEN'CE.      537 

RUIjE  114. — The  fii{,'lit  of  the  accused  (A)  or  lils 
attempts  to  escape  (15)  raise  a  presumption  of  liis 
guilt ;  unless  it  appear  that  the  act  \vas  for  another 

reason  (C). 

lUustralions. 


I.  A.  and  B.  are  suspected  of  the  murder  of  C,  committed  In  Ken- 
tucky, where  all  of  the  parties  lived.  It  is  shown  that  tliougli  iiuniedi- 
ately  after  the  crime  was  committed  a  searcli  was  instituted  for  A.  and 
B.,  they  could  not  be  found,  and  were  afterwards  arrested  many  miles 
distant  in  a  neighboring  State.    This  raises  a  presumption  of  their  guilt." 

II.  A.  is  out  on  bail,  pending  his  trial  for  a  crime.  "When  the  case  is 
called  it  is  found  tliat  A.  lias  left  the  State  and  forfeited  his  bond.  He  is 
subsequently  brought  baclv.     His  flight  raises  a  presumption  of  his  guilt.- 

'<  It  was  proven  by  the  Commonwealth,"  it  was  said  in 
case  I.,  "  tliat  the  appellants,  although  quickly  pursued  by 
soldiers  and  others,  could  not  be  found  upon  search  made 
for  them  at  their  homes,  and  were  subsequently  arrested  in 
or  near  the  city  of  Cincinnati.  These  circumstances,  unex- 
plained, could  not  have  failed  to  lend  to  the  other  facts  an 
additional  presumption  of  guilt." 

B. 

I.  M.  -was  on  trial  for  murder.  While  the  jury  were  considering  their 
verdict  M.  made  Ids  escape  from  the  court-room.  The  jury  failed  to 
agree.  M.  was  captured  and  tried  the  second  time.  Held,  that  the  for- 
mer attempt  to  escape  raised  an  inference  of  his  guilt.* 


1  riummer  V.  Com.  1  Bush,  76  (1866).  And,  see,  People  v.  Ah  Chor,  1  Idaho,  317 
(1S70) ;  People  V.  Stanley,  -17  Cal.  117  (1373) ;  SmUh  v.  Si:ue,5S  Miss.  873  (ISSl) ;  Math- 
ews r.  Slate,  0  Tex.  (App.)  133  (ISSO)  ;  Arniild  r.  State,  9  Tex.  (App.)  4:;G  (1S!«0); 
Aiken  v.  State.  10  Tex.  (App.)  GIO  (ISSl)  ;  lilake  v.  State,  3  Tex.  (Apj).)  581  (1377); 
Gose  r.  State,  C  Tex.  (App.)  1-21  (1S79) ;  People  v.  Lock  Wiug,  01  Cal.  381  (1882) ;  Syl- 
vester c.  State,  71  Ala.  25  (ISSl). 

2  Porter  f.  State,  2  Ind.  43.')  (ISoO). 

«  Murrell  v.  State,  40  Ala  89  (1371) ;  Foxley's  Case,  5  Coke,  100b;  43  Eliz. ;  People 
V.  Wong  .Vli  Xgow,  51  Cal.  151  (1830).  In  Iowa  it  is  lield  that  the  presumption  of  guilt 
from  an  attempt  to  escape  is  very  slight.  "Anciently,"  says  tlie  court,  "  the  com- 
mon hiw  attached  undue  sigiuflcance  to  an  attempt  to  evade  an-est,  or  to  escape 
from  It.  In  our  time,  however,  the  law  will  not  allow  a  p.irty  to  be  convic'cd  even 
on  his  own  confession,  if  it  be  uncorroborated."  State  v.  Arthur,  23  Iowa,  432  (1807). 
When  a  culprit  recklessly  destroys  lite  iu  order  to  escape  the  eonsc<|ueuees  of 
aniiiher  crime,  the  evidence  of  guilt  of  that  crime  is  thereby  strenglheued.  Itevel 
V.  Stale,  20  Ga.  275  (1858). 


538  PRESUMPTIVE  EVIDENCE.       [rULE  114. 

II.  A.,  on  being  apprclienclccl  for  a  crime,  attempts  to  escape.    Tills 
raises  a  presumption  of  A.'s  guilt. ^ 

III.  D.,  ■while  in  custody  for  a  crime,  attempts  to  bribe  one  of  bis 
guards.     This  raises  an  inference  of  D.'s  guilt.^ 

IV.  A.  being  accused  of  a  crime  jointly  with  B.,  advises  and  assists  B. 
to  escape.     This  raises  an  inference  of  A.'s  guilt.^ 

In  case  I.  it  was  said  :  "  The  escape  was  an  attempt  to 
flee,  and  it  had  reference  to  the  charge  in  the  case.  Flight 
in  a  criminal  prosecution  is  one  of  the  most  common 
grounds  for  a  presumption  of  guilt.  And  when  the  flight 
is  connected  with  the  offense  charged,  and  for  which  the 
accused  is  on  trial,  it  is  an  act  that  indicates  fear,  and  this 
fear  points  to  guilt.  Acts  speak  as  well  as  words,  and  they 
are  to  be  interpreted  by  the  common  experience  of  man- 
kind. And  a  flight  is  universally  admitted  as  evidence  of  the 
guilt  of  the  accused,  though  it  is  not  conclusive."  But 
the  fact  that  the  prisoner  had  an  opportunity  to  escape, 
but  did  not  avail  himself  of  it,  is  not  relevant.  "  It  is  sup- 
posed," said  the  court,  "that  the  admissibility  of  such 
proof  follows  from  the  rule  which  turns  an  attempt  to 
escape  against  the  prisoner.  A  strong  declaration  of  Hume 
in  his  treatise  on  the  trial  of  Crimes,  that  such  a  fact  should 
be  received  as  conclusive  against  any  cases  sustained  by  cir- 
cumstantial evidence  merely  was  cited.  But  the  difference 
between  an  attempt  to  escape  and  refusal  to  escape,  whatever 
degree  of  moral  conviction  the  latter  might  carry  to  the 
to  the  mind  of  the  writer,  is  quite  obvious  when  they  are 
offered  as  legal  evidence.  The  attempt  implies  guilt  and 
operates  against  the  party  like  a  confession.  The  refusal 
is  an  act  and  confession  in  his  own  favor.  Once  receive  it 
and  the  criminal  courts  will  be  loaded  with  such  evidence. 
It  is  almost  as  easily  manufactured  as  a  declaration  of  inno- 


1  Dean  r.  Com.  4  Gratt.  541  (1847);  Fanning  v.  State,  14  Mo.  386  (1851);  State  v. 
Mallon,  75  Mo.  350  (1882) ;  People  v.  Strong,  46  Cal.  302  (1873) ;  State  v.  Williams,  54 
Mo.  170  (1873) ;  State  v.  Phillips,  24  Mo.  485  (1857). 

2  Dean  V.  Com.  4  Gratt.  541  (1847) ;  Whaley  v.  State,  11  Ga.  127  (18.52.) 

8  People  V.  Ratlibun,  21  Wend.  509  (1839) ;  People  v.  Pitcher,  15  Mich.  397  (1867). 


RULE  115.]    niESUilPTIOXS  IX  DISFAVOlt  OF  INNOCEXCE.     539 

ccncc.  The  prisoner  and  his  friends  may  introduce  a  third 
person  to  give  the  advice  and  hear  tlic  refusal  who  may  ])Q 
a  Avitncss  with  perfect  integrity,  A  dupe  himself,  he  may 
testify  to  the  fact  without  being  guilty  of  perjury." 

C. 

I.  A.  and  B.,  after  the  commission  of  a  murder  Avhich  they  are  sus- 
pected of  being  guilty  of,  fly  from  their  homes  to  a  distant  Slate.  Tliis 
raises  a  presumption  of  guilt.  Tiie  fact  that  A.  and  B.  fled  Ijecause  of  a 
fear  of  violence  at  the  hands  of  their  pursuers  overthrows  this  presump- 
tion.2 

II.  A.  is  confined  in  jail  on  a  charge  of  murder.  A.  attempts  to 
escape.  This  raises  no  presumption  of  guilt  of  the  murder,  if  A.  sought 
to  get  away  from  the  jail  because  of  his  cruel  treatment  by  his  guards.' 

III.  F.  who  is  suspected  of  a  crime  is  found  to  have  subsequently 
changed  his  residence.  F.  is  a  peddler  who  is  accustomed  to  go  from 
place  to  place.  No  presumption  of  guilt  can  arise  from  this  circumstance 
aloue.* 

"  But  there  was  evidence,"  it  was  said  in  case  I.  "  before 
the  jury  tending  to  explain  the  concealment  and  flight  of 
appellants  upon  the  ground  that  they  were  occasioned  by 
an  apprehension  of  violence  from  soldiers  or  otherwise; 
and  this,  in  our  opinion,  w^as  competent  evidence  which  the 
jury  had  a  right  to  regard  as  conducing  to  rebut  the  i)re- 
sumption  of  guilt  arising  from  the  concealment  or  flight  of 
the  appellants." 

RtXE  115.  —  The  destruction  (A),  concealment  (B),  or 
fabrication  (C  )  of  evidence  by  the  accused  raises  a  pre- 
sumption of  Lis  guilt  —  omnia  prajsumuutur  coutra 
spoliatorem. 

On  the  trial  of  Lord  Melville,'*  the  solicitor-general  (Sir 
Samuel  Eomilly),  in  addressing  the  House  of  Lords  and 

1  People  r.  Kathbun,  21  M'end.  .'519  (1S39). 

2  Pluiumer  r.  Com.,  1  IJusii,  70  (1S6G) ;  UolJcn  r.  State,  25  Ga.  527  (1S53) ;  Arnold  v 
state,  0  Tex.  (.Vpp.)  43G  (1880). 

s  State  r.  Mallon,  75  Mo.  35G  (1SS2). 

*  Be~t  Kv.,  sec.  4G1. 

6  2'Jllo\v.  St.  Tr.  119i  (1S06). 


540  PEESUMPTIYE  EVIDENCE.       [kULE  115. 

speaking  of  the  act  of  tlio  prisoner  in  destroying  certain 
vouchers,  said:  "  I  should  think  it  could  hardly  be  necessary 
to  3'our  lordships  collectively ;  I  am  sure  it  can  not  be  to 
many  of  3'ou  individually,  to  state  what  inferences  courts  of  • 
justice  always  draw  from  the  destruction  of  evidence. 
Most  of  the  cases  that  have  occurred  of  that  kind,  at  least 
if  those  that  I  have  known  are  civil  cases;  but  I  know  of  no 
distinction  in  this  respect  between  civil  and  criminal  cases. 
The  presumption  in  one  case  is,  as  I  conceive,  as  strong  as 
in  the  other.  In  civil  cases,  a  party  who  destroys  evidence 
of  a  transaction  is  always  charged  to  the  full  extent  that 
it  w^as  possible  that  that  transaction  could  have  gone.  I  will 
state  to  your  lordships  a  very  few  cases  which  have  occurred 
on  questions  of  this  kind  (after  citing  Armory  v.  Delaniaire^ 
DaltoriY.  Coatsioorth  and  Wltite  v.  Lincoln'^  he  proceeded) : 
"  I  have,  however,  hitherto  only  stated  to  your  lordships 
civil  cases,  but  I  am  sure  that  no  case  occurs  of  any  person 
convicted  of  an  offense  upon  circumstantial  evidence,  in 
which  the  court  does  not  act  upon  presumptions  exactly  of 
the  same  kind.  I  would  suppose  that  a  man  were  indicted 
for  the  murder  of  another,  and  that  there  was  no  evidence 
ao-ainst  him,  but  that  which  is  called  circumstantial  evidence : 
that  is  evidence  of  conduct  or  of  circumstances  which  can 
not  be  accounted  for  upon  any  hypothesis,  but  that  of  the 
party  being  guilty.  I  will  suppose  a  case  of  that  kind,  and 
then  I  will  ask  your  lordships,  if  evidence  were  to  be  pro- 
duced that  the  prisoner  had  destroyed  the  clothes  which  he 
Avore  upon  the  day  on  which  the  man  was  murdered,  whether 
a  jury  would  not  be  directed  to  "presume  or  Avhcther  a  jury 
would  not  presume  that  the  clothes  so  destroyed  had  been 
stained  with  the  blood  of  the  man  that  was  murdered,  and 
that  they  had  been  destroyed  only  for  the  purpose  of  sup- 
pressing that  evidence  ?  If  a  jury  Avould  not  be  expressly 
directed  to  presume  guilt  from  this,  I  would  ask  whether 
the  party's  having  destroyed  the  clothes  he  wore  upon  the 

1  See  Ante,  ch.  VII,  p.  110. 


RULE  115.]    rRESUMPTIOXS  IN  DISFAVOR  OF  IXNOCENCE.     541 

day  on  which  the  man  was  murdered  would  not  be  consid- 
ered as  most  material  evidence  in  •  such  a  case?  And 
whether  it  could  be  evidence  in  any  way,  but  that  in  which 
I  have  stated  that  it  must  be  presumed  that  no  innocent  man 
would  have  destroyed  that  evidence,  which  would  have  con- 
tributed to  his  acquittal  if  innocent,  and  could  contribute 
to  his  conviction  only  if  he  were  guilty." 

Illustrations. 

A. 

I.  A.  is  accused  of  the  murder  of  B.  by  poison.  The  fact  that  A.  had 
the  body  of  B.  interred  with  great  haste  is  relevant  on  the  question  of 
A.'s  guilt. 1 

II.  I).,  who  resided  with  E.,  is  accused  of  poisoning  him.  The  death 
of  E.  being  very  sudden,  H.,  his  guardian,  wrote  to  D.  saying  that  £>s  he 
suspected  that  E.  might  have  been  poisoned,  he  wanted  his  body  opened 
for  the  purpose  of  investigating  that  fact.  D.  replied,  assenting,  when 
II.  wrote  a  second  letter  as  to  the  investigation  of  the  body  by  physicians, 
but  sajing  nothing  about  poison.  When  the  doctors  came  1).  showed 
them  the  second  letter  but  said  nothing  about  the  first,  and  on  being 
asked  the  purpose  of  the  examination  toUl  them  that  it  was  only  for  the 
satisfaction  of  the  family.  The  physicians,  therefore,  suspecting  nothing, 
omitted  to  search  for  poison,  and  1).  had  the  body  immediately  interred. 
These  facts  were  held  to  raise  an  inference  of  D.'s  guilt.' 

III.  A  person  before  being  arrested  for  the  murder  of  another  attempts 
to  remove  all  trace  of  the  blood  and  to  destroy  all  the  instruments  of 
the  crime.    This  raises  a  presumption  of  guilt.' 

IV.  A.  being  accused  of  a  crime  attempts  to  spirit  away  a  witness. 
This  is  relevant.* 

B. 

I.  S.  is  indicted  for  the  forgery  of  a  bank-note.  On  his  being  arrested 
a  forged  bank-note  is  found  concealed  in  the  cuff  of  his  coat.  This 
raises  an  inference  of  guilt. ^ 

II.  A.,  who  was  a  soldier,  was  accused  of  the  murder  of  C.  In  order 
to  identify  a  soldier  who  liad  sold  a  watch  belonging  to  C.  to  B.  the  com- 


1  R.  V.  Donn.ill,  Wills'  Circ.  Ev.  18S. 
»  K.  f.  Donnellan,  Phill.  Tr.  131. 
«  Burr.  Ev.  412. 

*  Martin  v.  State,  2S  Al.i.  71  (18.56). 

(■Stewart's  Case,  2  City  Uall  Uec.  1S7  (1817) ;  People  v.  Gardner,  2  Wheeler,  23 
(1822). 


542  PRESUMrTIVE  EVIDENCE.       [RULE  115. 

pany  was  drawn  np  iu  line  so  that  B.  could  see  them.  While  B.  was 
passing  along  the  line  to  inspect  the  soldiers,  A.  attempted  to  conceal 
himself  behind  the  door  of  a  house  which  stood  near.  This  circumstance 
is  relevant  in  raising  a  presumption  that  A.  Avas  guilty. i 

III.  L.  was  indicted  for  the  murder  of  his  wife.  It  appeared  that  L. 
had  concealed  her  death  from  every  one  for  several  hours  after  it  took 
place.    This  is  relevant. ^ 

lY.  A.  on  being  arrested  for  robbery  takes  a  pocket-book  out  of  his 
pocket  and  slips  it  under  his  coat  into  the  hands  of  his  wife  who  stands 
by  him,  then  turns  to  the  officers  and  declares  he  has  no  money.  This 
raises  a  presumption  of  A.'s  guilt.^ 

In  case  III.  it  was  said:  *'The  prisoner  concealed  the 
killing  for  several  hours.  He  has  never  admitted  the  kill- 
ino-  by  himself  and  claimed  that  it  was  an  accident  or  for 
any  cause  excusable ;  at  least  there  is  no  evidence  of 
any  such  admission.  Concealment,  it  is  well  settled,  is 
evidence  of  malice  —  of  a  premeditated  design  to  commit 
the  deed.  If  he  had  not  intentionally  committed  the  deed, 
some  human  emotion  would  have  induced  him  to  betray  his 
sorrow  or  his  consciousness  of  his  own  overwhelming  dis- 
aster." 

In  case  IV.  the  trial  court  in  reference  to  that  transaction 
had  instructed  the  jury  that  the  suppression,  destruction 
or  concealment  of  evidence  against  the  accused  was  a  cir- 
cumstance from  which  they  should  draw  the  strongest  infer- 
ence of  guilt,  because  if  he  was  innocent  he  would  have 
no  interest  in  concealing  or  destroying  such  testimony. 
The  Supreme  Court  thought  the  epithet  "strongest"  too 
strong,  but  would  not  reverse  the  case  on  this  ground. 

C. 

I.  C.  was  absent  from  his  house  for  over  an  hour,  and  on  returning 
said  to  his  servant:  "  If  any  inquiries  are  made,  say  that  I  was  not  out 
more  than  ten  minutes."  C.  being  indicted  for  a  murder  committed 
during  his  absence  from  home,  this  request  of  his  raises  a  presumption 
of  his  guilt.* 

1  Flanactan  v.  State,  25  Ark.  92  (1800). 

2  Lanergan  v.  People,  6  Park.  C.  C.  225  (1863). 
s  Miller)-.  People,  30  III.  406  (I860). 

*  R.  V.  Hush,  Burr.  Ev.  i35. 


RULE  115.]    PRESUMPTIONS  IX  DISFAVOIl  OF  IXXOCEXCE.     543 

II.  A.  is  accused  of  shooting?  B.  with  a  pistol.  A  pistol  Is  found 
beside  B.  in  such  a  position  that  it  would  appear  that  it  is  a  case  of  sui- 
cklo.  But  it  is  proved  that  it  Is  A.'s  pistol,  and  that  A.  placed  it  there. 
This  raises  a  presumption  of  A.'s  gnilt.i 

III.  R.,  a  postmaster,  is  charged  with  the  embezzlement  of  a  regis- 
tered letter.  In  his  books,  entries  concerning  the  letter  are  found  to 
have  been  erased  and  added  to.  This  raises  a  presumption  of  R.'s 
guilt.2 

IV.  A.  person  charged  with  murder  is  proved  to  have  sent  a  letter  to 
the  officers  of  the  law  throwing  suspicion  on  another.     This  is  relevant.* 

In  case  III.  it  was  said:  "The  falsification  of  record?!, 
either  by  interlinoalions  or  erasures,  with  reference  to  a 
matter  in  Avhicli  the  party  making  such  falsification  is  su.s- 
pected  or  char^^ed,  or  liable  to  the  suspected  or  charged  witli 
neglect  or  wrong  doing,  is  strong  presumptive  evidence  of 
guilt." 

"  The  general  rule  is,"  said  the  court,  in  case  IV.,  "  that 
whatever  falsehood  a  person  charged  with  crime,  concocts 
to  avert  suspicion  from  himself  is  admissible  evidence 
against  him.  And  on  the  same  principle  whatever  false- 
hood a  person  thus  situated  puts  forth  to  charge  his  own 
offense  upon  another  who  is  innocent  must  be  competent 
evidence  against  himself. 

In  a  leading  case,  Chief  Justice  Shaw,  said  :  *'  To  the  same 
head  may  be  referred  all  attempts  on  the  part  of  the  accused 
to  suppress  evidence,  to  suggest  false  and  deceptive  expla- 
nations and  to  cast  suspicion  without  just  cause  on  other 
persons;  all  or  any  of  which  tend  somewhat  to  prove  con- 
sciousness of  guilt,  and  when  proved  to  exert  an  influence 
against  the  accused." 

1  E.  V.  Green,  7  How.  St.  Tr.  159  ;  R.  v.  Norkntt,  14  Id.  1324. 

2  U.  S.  r.  Randall,  Deady,  543  (1S<;9).  In  State  r.  Knapp,  45  X.  H.  148  (1S63), 
on  the  trial  of  an  indictment  for  rape,  the  jury  had  been  taken  to  view  the 
premises  where  the  crime  was  alleged  to  have  been  committed.  It  appeared 
that  just  previous  to  this  a  change  had  been  made  in  the  condition  of  the 
place— some  boards  which  had  fallen  off  a  fence  were  replaced  by  a  per- 
son acting  in  behalf  of  the  prosecution.  The  court  held  that  this  cast  the  bur- 
den on  the  State  of  satisfying  the  aiipellate  court  that  the  prisoner  could  not  have 
been  injured  by  the  change  ;  and  that  it  was  not  enough  to  render  it  merely  more 
probable  that  no  injury  had  been  done  to  him. 

Gardner  v.  People,  6  Park.  C.  C.  iOS  (1S06). 


544  PRESUMPTIVE  EVIDENCE.       [rULE  115. 

"  But  this  consideration  is  not  to  be  pressed  too  urgently, 
because  an  innocent  man  when  placed  by  circumstances  in 
a  condition  of  suspicion  and  danger  may  resort  to  deception 
in  the  hope  of  avoidingthe  force  of  such  proofs.  Such  was 
the  case  often  mentioned  in  the  books  of  a  man  convicted 
of  murder  of  his  niece  who  had  suddenly  disappeared  under 
circumstances  which  created  a  strong  suspicion  that  she  was 
murdered.  He  attempted  to  impose  on  the  court  by  pre- 
senting another  girl  as  the  niece.  The  deception  was  dis- 
covered, and  naturally  operated  against  him,  though  the 
actual  appearance  of  the  niece  alive  afterwards,  proved 
conclusively  that  he  was  not  guilty  of  the  murder.^ 

Robbery  may  take  place  by  putting  in  fear  as  well  as  by 
force,  or  rather  as  has  been  said,  fear  may  take  the  place 
of  force.  But  actual  fear  need  neither  be  alleged  nor 
proved.  "  Provided,"  say  the  old  writers,^  "  the  property 
be  taken  with  such  circumstances  of  violence  or  terror,  or 
threatening  by  word  or  gesture  as  would  in  common  expe- 
rience induce  a  man  to  part  with  it  from  an  apprehension 
of  personal  danger,  the  law  in  odium  sj)oliatoris  will  pre- 
sume fear  where  there  appears  to  be  a  reasonable  ground 
for  it."  In  Nordeii's  Case,^  this  presumption  was  carried 
as  far  as  this.  A  person  having  been  told  that  one  of  the 
staffe  coaches  coming  to  the  town  where  he  lived  had  been 
frequently  robbed  by  a  single  highwayman,  resolved  to  cap- 
ture him.  In  pursuance  of  this  resolve  he  put  a  small  sum 
of  money  and  a  pistol  in  his  pocket  and  followed  the  coach 
in  a  chaise.  The  highwayman  duly  appeared,  and  after 
relieving  the  passengers  in  the  coach  of  their  valuables 
came  to  him,  and  presenting  a  weapon  demanded  his  money. 
The  amateur  detective  handed  over  his  purse,  and  then 
jumping  from  the  chaise,  with  the  aid  of  the  passengers  ni 
the  coach,  captured  the  highwayman.  The  latter  was  held 
guilty  of  robbing  the  chaise  passenger. 


1  Com.  V.  Webster,  5  Cush.  317,  Shaw,  C.  J. 

2  See  ?::i.st'8  Pleas  of  the  Crown,  711. 

3  Fost.  129. 


RULE  lie.]    rRESDMmOXS  IN  DISFAVOR  OF  INNOCENCE.     545 

RULE  lie. — Silence  on  the  part  of  the  accnsod  when 
charges  are  made  aj^ainst  him  in  his  presence  and 
hearing,  raises  a  presumption  of  guilt  (A)  unless  the 
charges  are  made  in  the  course  of  a  judicial  interro- 
gation (  B  ) .  But  the  failure  of  the  accused  to  produce 
on  his  trial  evidence  in  his  favor  and  Avithiu  his  poAver 
raises  a  presumption  of  guilt  (  C ) . 

Illustrations. 

A. 

I.  A.  is  accused  of  administering  a  poison  to  his  wife  witli  tlie  inten- 
tion of  killing  her.  A  witness  testifies  tliat  the  wife  had  declared  that 
A.  had  attempted  to  poison  her,  in  his  presence,  and  that  A.  was  stand- 
ing near  by,  but  made  no  response.    This  is  relevant. > 

II.  One  S.  being  murdered,  II.  says  to  R.,  "Everybody  suspects  j'ou. 
I  suspect  you."  R.  remains  silent.  On  the  trial  of  R.  for  the  murder  of 
S.  this  is  relevant.2 

III.  M.  was  murdered  by  .stabbing.  Before  he  died,  being  in  the 
presence  of  D.,  and  in  his  hearing,  M.  saj-s  that  he  won  $55  from  D.,  the 
niglit  before,  and  that  D.  had  murdered  him  to  get  back  the  money. 
This  is  relevant  and  raises  an  inference  against  D.  on  his  trial  for  the 
murder  of  M.' 

IV.  S.  is  indicted  for  the  murder  of  T.  Certain  observations  were 
made  by  his  wife  in  the  presence  of  others  on  the  subject  of  the  crime,  to 
which  S.made  no  direct  reply.  These  statements  are  relevant  against 
S.* 

v.  Several  times  while  confined  in-  jail,  A.  accused  B.  of  the  murder  of 
E.  to  which  B.  made  no  response.     This  is  relevant.* 

VI.  M.  is  accused  of  a  burglary  and  robbery.  It  appears  that  after 
the  crime  was  committed,  M.  and  his  brother  were  at  a  candy  pulling  to- 
gether, when  the  brother,  in  M.'s  presence  and  hearing,  remarked  that 
he  had  §150  in  his  possession  belonging  to  M.  M.  made  no  response. 
This  is  relevant  as  an  admission  of  M.  that  it  was  true.^ 


1  Com.  t'.  Gal.avan,  9  jUlen,  271  (1>!(>4).  The  conduct,  demeanor,  .ind  expressfon 
of  the  accused  at  or  about  the  time  of  the  commission  of  the  crime  with  wliich  he  is 
charged,  are  comiietcnt  evidence  against  him.    Blount  v.  State,  49  Ala.  381  (1873). 

2  State  r.  Heed,  C-2  Me.  130  (1S74). 

8  Donnelly  v.  State,  26  N.  J.  (L.)  613  (1857) ;  contra,  State  v.  Edwards,  13  S.  C.  30 
0879). 

*  R.  f.  Smithies,  5  C.  &  P.  332  (1832). 

6  Etlingcr  f.  Com.,  98  Pa.  St.  345  (1831) ;  State  v.  Crockett,  82  N.  C.  600  (1880). 

«  Moye  V.  State,  66  Ga.  740  (1881). 

85 


546  peesu:mptive  evidence.  [eule  116. 

In  case  I.  it  Tvas  said:  "The  statements  of  the  defend- 
ant's wife  while  in  a  room  connected  by  an  open  door  with 
the  narrow  entry  in  which  the  defendant  was  standing, 
related  to  acts  done  by  the  defendant  or  in  his  presence. 
They  were  made  in  the  defendant's  own  house,  in  the 
absence  of  any  officer  of  the  law  or  anything  which  might 
create  constraint  or  apprehension,  and  und-^.r  such  circum- 
stances that  he  might  well  have  heard,  and  if  he  did  must 
have  understood  them,  and  known  whether  they  were  true  or 
false,  and  would  have  been  likely,  according  to  common  ex- 
perience, to  reply  to  them  and  contradict  them  if  untrue. 
They  are,  therefore,  admissible  in  evidence  against  him 
within  the  rule  laid  down." 

In  case  IT.  the  court  said:  "  No  doubt  as  to  the  fact  that 
he  was  told  he  was  suspected  is  suggested.  His  silence  is 
not  denied.  A  suspicion  of  crime  conveyed  to  the  prisoner 
is  so  nearly  similar  to  a  charge  of  having  committed  the 
crime  that  the  jury  would  not  be  misled  (by  speaking  of 
the  words  as  a  "charge"  of  the  crime)  especially  when 
their  attention  is  directed  to  the  testimony  upon  which  the 
remark  is  predicated;  and  whether  it  was  a  suspicion  or 
charge  the  same  law  would  be  applicable.  The  probative 
force  of  the  fact  would  be  the  same  in  either  case;  or  if 
different,  it  would  differ  in  degree  only.  The  law  given 
was  correct.  *  *  *  It  is  introduced  by  the  remark  of 
the  presiding  judge  that,  it  is  not  merely  what  the  prisoner 
says  or  does,  but  what  he  omits  to  do  or  say  that  may  be- 
come facts  evidentiary  of  guilt.  Then  after  alluding  to  the 
facts  as  shown  by  the  testimony,  he  says  further,  '  What  is 
the  law?  A  statement  is  made  cither  to  a  man  or  within 
his  hearing  that  he  was  concerned  in  the  commission  of  a 
crime  to  which  he  makes  no  reply  ;  the  natural  inference  is 
that  the  imputation  is  well  founded  or  he  would  have 
repelled  it.'  This  is  a  quotation  from  Best,  on  Presump- 
tions, affirmed  in  State  v.  Cleaves^  and  its  justice  and  pro- 

1  59  Me.  300. 


RULE  lie,]    rPtESUMmONS  IN  DISFAVOR  OF  INNOCENCE.     517 

pricty  are  there  so  fully  illustrated  that  we  deem  it  unnec- 
essary to  add  anything  to  what  is  there  said." 

In  case  III.  it  was  said  :  "  AVhcn  a  matter  is  stated  in  the 
hearing  of  one  whith  injuriously  affects  his  rights  and  he 
understands  it  and  assents  to  it  wholly  or  in  part  by  a  reply, 
both  are  admissible  in  evidence,  the  answer  because  it  is  the 
act  of  the  party  who  is  presumed  to  have  acted  under  the 
force  of  truth,  and  the  statement  as  giving  point  and  mean- 
ing to  the  action.  So,  also,  silence  unless  it  be  accounted 
for  *  *  *  niay  be  taken  as  a  tacit  admission  of  the 
fact  stated,  because  a  person  knowing  the  truth  or  falsity  of 
a  statement  affecting  his  rights  made  by  another  in  his 
presence,  under  circumstances  calling  for  a  reply,  will  natu- 
rally deny  it,  if  he  be  at  liberty  so  to  do,  if  he  docs  not 
intend  to  admit  it.  "Whatever  is  said  to  a  prisoner  on  the 
subject-matter  of  the  charge,  to  which  he  made  no  direct 
reply,  is  receivable  as  evidence  of  an  implied  acquiescence 
on  his  part." 

In  case  IV.,  although  the  wife  was  not  admissible  as  a 
witness,  the  court  thought  that  this  circumstance  did  not 
vary  the  general  rule  stated  in  the  last  sentence. 

In  case  V.  it  was  said:  "  The  circumstances  under  which 
the  accusation  was  made  were  so  well  calculated  to  elicit  a 
reply,  that  we  are  not  prepared  to  say  that  the  silence 
of  the  prisoner  was  not  a  circumstance,  though  very 
slight,  for  the  consideration  of  the  Jury.  Silence  under 
certain  circumstances,  may  amount  to  a  tacit  admission  of 
guilt." 

*<  "Where  an  individual  is  charged  with  an  offense  or 
declarations  are  made  in  his  presence  or  hearing  touching  or 
affecting  his  guilt  or  innocence  of  an  alleged  crime,  and  he 
remains  silent  when  it  would  be  proper  for  him  to  speak, 
it  is  the  province  of  the  jury  to  interpret  such  silence,  and 
determine  whether  his  silence  was,  under  the  circumstances, 
excused  or  explained.  At  most,  silence  under  such  circum- 
stances is  but  an  implied  acquiescence  in  the  truth  of  the 


548  PRESUMPTIVE  EVIDENCE.       [rULE  116. 

stntoments  made  by  others,  and  thus  presumptive  evidence 
of  guilt,  and  in  some  cases  it  may  be  slight,  except  as  con- 
firmed and  corroborated  by  other  circumstances.  But  it  is 
some  evidence,  and,  therefore,  except  in  those  cases  where 
the  statements  are  made  upon  an  occasion  and  under  cir- 
cumstances in  which  the  individual  sought  to  be  affected 
could  not  with  propriety  speak,  as  in  the  progress  of  a 
judicial  investigation  or  in  a  discussion  between  third  per- 
sons not  addressed  to  or  intended  to  affect  the  accused  or 
induce  any  action  in  respect  to  him,  so  that  for  him  to 
speak  would  be  a  manifest  intrusion  into  a  discourse  to 
w'hic'h  he  was  not  a  party,  the  evidence  is  competent  and 
should  be  admitted.  Any  declaration  of  the  individual  in 
response  to  a  statement  so  made  would  be  admissible  in  evi- 
dence, and  an  omission  to  make  any  ansAver  to  it  or  to 
notice  it  like  other  acts  of  the  party  is  to  be  interpreted  and 
such  effect  given  to  it  as  evidence,  in  connection  with  the 
other  circumstances  of  the  case,  as  the  jury  in  their  discre- 
tion shall  think  it  entitled  to.  The  implication  of  assent 
to  a  statement  affecting  the  guilt  or  innocence  of  an  indi- 
vidual, from  an  omission  to  controvert,  qualify,  or  explain 
it,  arises  from  the  fact  that  a  person  knowing  the  truth  or 
falsity  of  a  statement  affecting  his  rights  made  by  another 
in  his  presence,  will  naturally,  under  circumstances  calling 
for  a  reply,  deny  it,  if  he  be  at  liberty  to  do  so,  if  he  do 
not  intend  to  admit  it."  ^  In  a  Missouri  case^  it  is  said: 
"  It  is  not  in  all  instances  where  declarations  are  made  in 
the  presence  and  hearing  of  a  person  that  these  declarations 
can  be  given  in  evidence  against  him.  They  frequently  call 
for  no  reply,  and  sometimes  they  are  impertinent  and 
deserve  no  notice.  Unless  it  is  shown  that  the  party  is  imme- 
diately concerned,  and  that  unless  he  did  speak,  his  silence 
might  fairly  be  construed  into  an  admission,  the  declara- 
tions Avill  not  be  admissible." 


1  Kelley  v.  People,  55  N.  Y.  573  (1874). 

2  Stale  V.  Hamilton,  55  Mo.  523  (1874). 


RULE  IIG.]    rnESUMlTIONS  l.V  DISFAVOK  OF  INNOCENCE.     5-kO 

B. 

I.  A.  and  B.  are  charged  with  the  joint  commission  of  a  felony.  On 
his  examination  before  the  conimittinjj;  magistrate,  A.  states  iu  the  pres- 
ence of  B.  and  in  his  hearing  that  lie  and  B.  committed  the  crime,  but  li. 
malics  no  response.  This  is  not  relevant,  and  raises  no  presumption 
against  B.^ 

II.  On  the  trial  of  C.  a  witness  makes  certain  statements  as  to  C.'s 
guilt.  C.  makes  no  response.  This  raises  no  inference  of  guilt  against 
C.2 

III.  Two  watchmen  took  K.  Into  custody  and  carried  him  to  the 
station,  where  one  of  them  said  that  K.  had  been  I'obbiug  a  man.  li. 
soon  came  in  and  pointed  to  K.  and  said  "that  man  has  stolen  my 
money."  K.  afterwards  laid  a  bag  on  a  shelf,  which  one  of  the  oflicers 
observing,  took  up  and  found  it  contained  money.  II.  said  it  was  his  liag 
and  contained  all  the  money  he  had.  K.,  though  within  liearing  of  all 
that  was  said,  remained  silent.  This  raised  no  presumption  against  K., 
and  the  declarations  of  R.  and  the  officer  are  irrelevant.* 

IV.  W.  was  confined  in  prison  awaiting  trial  on  a  charge  of  burglary, 
Wliile  in  his  cell  N.  was  brought  to  the  door  anil  asked  by  a  police  ollicer, 
in  W.'s  presence  and  hearing  if  he  was  a  certain  party  whom  she  had 
seen  near  the  building  before  the  time  of  the  burglary.  N.  answereil, 
"Yes,  I  will  swear  to  it."  \V.  made  no  denial  or  response.  This  raised 
no  presumption  of  W.'s  guilt  aud  was  irrelevant.* 

Cases  I.  and  II.  are  founded  on  the  rule  that  a  prisoner 
on  trial  is  not  obliged  to  retort  upon  or  deny  every  state- 
ment which  is  made  during  the  proceedings,  and  as  fast  as 
they  are  made.  Under  a  judicial  interrogation,  the  pris- 
oner has  a  constitutional  right,  under  the  principles  of  the 
English  common  law,  to  remain  silent. 

In  case  III.  the  position  of  the  parties  at  the  time  was 
held  by  the  court  to  bring  them  within  the  meaning  of  the 

1  n.  V.  Appelby,  3  Stark.  3.3  (1821) ;  contra,  Maguire  v.  People,  5  N.  Y.  (T.  &  C.)  6S2 
(1874). 

2  Burr.  482,  Shaw,  C.  J.,  in  Com.  v.  Kenney,  post. 

8  Com.  V.  Keuiniy,  12  Mete.  2!)  (ISIT) ;  State  i\  Weaver,  57  Iowa,  732  (1SS2) ;  con- 
tra, Kellcy  r.  People,  65  N.  Y.  572  (1874). 

*  Com.  r.  Walker.  13  Allen,  570  (18(U)).  In  a  New  Jersey  c.ise  it  is  said:  "The 
«pt<wtjiulic,ial  investigation  instituloil  by  Coroner  C^onnery,  of  the  city  of  New  York, 
inipr(>i>cr  and  informal  as  it  was  niiijhl  have  restrainetl  llie  accused  from  denying- 
or  replying  to  tlie  statement  of  Moses,  and  would  have  protected  him  from  having 
any  unfavorable  iufereuce  drawn  from  his  silence."  Douuelly  r.  State,  26  N.  J.  (L.) 
613  (1857),  aud  see  SuUivau  r.  People,  31  Mich.  1  (1S75). 


550  PRESOITTIYE   EVIDENCE.  [rULE    116. 

phrase,  "  judicial  interrogation."     Said  Shaw,  C.  J.  :  "In 
some  cases  where  a  statement  is  made  in  the  hearing  of 
another  in  regard  to  facts  affecting  his  rights,  and  he  makes 
no  reply,  it  may  be  a  tacit  admission  of  the  facts.     But  this 
depends  on  two  facts :  first,  whether  he  hears  and  under- 
stands the  statement  and  comprehends  its   bearing;  and 
secondly,  whether  the  truth  of  the  facts  embraced  in  the 
statement  is  wnthin  his  own  knowledge  or  not;  whether  he 
is  in  such  a  situation  that  he  is  at  liberty  to  make  any  reply ; 
and  whether  the  statement  is  made  under  such  circumstances 
and  by  such  persons  as  naturally  to  call  for  a  reply  if  he 
did  not  intend  to  admit  it.     If  made  in  the  course  of  any 
judicial  hearing,  he  could  not  interfere  and  deny  the  state- 
ment; it  would  be  to  charge  the  witness  with  perjury,  and 
alike  inconsistent  with  decorum  and  the  rules  of  law.     So,  if 
the  matter  is  of  something  not  within  his  knowledge;  if 
the  statement  is  made  by  a  stranger  whom  he  is  not  called 
on  to  notice,  or  if  he  is  restrained  by  fear,  by  doubts  of  his 
rights,  by  a  belief  that  his  security  will  be  best  promoted 
by  his  silence  —  then  no  inference  of  assent  can  be  drawn 
from  that  silence.     *     *     *     The  circumstances  are  such 
that  the  court  are  of  opinion  that  the  declaration  of  the 
party  robbed,  to  which  the  defendant  made  no  reply,  ought 
not  to  have  been  received  as  competent  evidence  of  his 
admission  either  of  the  fact  of  stealing,  or  that  the  bag  and 
money  were  the  property  of  the  party  alleged  to  be  robbed. 
The  declaration  made  by  the  officer  who  first  brought  the 
defendant  to  the  watch-house,  he  had  certainly  no  occasion 
to   reply   to.     The  subsequent  statement,  if  made  in  the 
hearing  of   the  defendant  (of  which,  Ave  think,  there  was 
evidence)  was  made  whilst  he  was  under  arrest,  and  in  the 
custody  of  persons  having  official  authority.     They  were 
made  by  an  excited,  complaining  party  to  such  officers  who 
were  just  putting  him  into  confinement.     If  not  strictly  an 
official  complaint  to  officers  of  the  law,  it  was  a  proceeding 
very  similar  to  it,  and  he  might  well  suppose  that  he  had  no 
right  to  say  anything  until  regularly  called  on  to  answer." 


RULE  116.]    PRESmiPTIOXS  IN  DISFAVOR  OF  INNOCENCE.     551 

Case  IV.  proceeds  on  the  same  principle,  viz.  :  thcofBcer 
being  present,  it  was  in  the  nature  of  a  judicial  interroga- 
tion. 

C. 

I.  G.  is  indicted  for  the  murder  of  T.  The  question  Is,  was  G.  in  the 
company  of  T.  at  a  certain  time.  Circumstantial  evidence  is  produced 
to  sliow  that  lie  was,  and  G.  does  not  account  for  his  whereabouts  at  that 
time.    This  raises  an  inference  that  G.  was  there. ^^ 

II.  A.  is  indicted  for  selling  liquor  without  a  license.  The  sale  is 
proved,  and  A.  does  not  produce  any  license.  The  presumption  is  that 
he  has  none.^ 

In  case  I.  it  was  said:  "A  prisoner  pressed  by  the  force 
of  accumulated  circumstances  may  not  unfrequentlv  find 
himself  in  the  position  where  he  is  required  to  account  for 
his  whereabouts  on  a  given  day,  or  to  show  how  he  became 
possessed  of  a  given  sum  of  money  or  article  of  personal 
property.  The  omission  to  produce  such  evidence  has 
never  been  regarded  as  absolute  and  conclusive  evidence  of 
the  fact  in  dispute.  Neither  the  elementary  writers  nor 
the  adjudicated  cases  furnish  any  such  rule  of  evidence. 
The  absence  of  such  evidence,  especially  when  it  appears 
to  be  in  the  power  of  the  prisoner  to  furnish  it,  creates  a 
strong  presumption  of  guilt,  a  strong  inference  against  him 
and  is  a  circumstance  greatly  corroborative  of  the  truth  of 
the  evidence  given  upon  the  other  side.  In  a  doubtful  case 
it  would  justify  the  jury  in  resolving  the  doubt  against 
him." 

Where  by  statute  a  defendant  in  a  criminal  case  is 
allowed  to  testify  in  his  own  behalf  (a  privilege  not  his  at 
common  law),  the  question  has  arisen  whether  a  refusal  to 

1  Gordon  v.  People,  33  N.  Y.  508  (isr.5) ;  People  v.  Dyle,  21  N.  Y.  578  (ISCO).  A  fail- 
ure to  produce  eviacnce  in  his  favor  Milluii  his  power  may  raise  a  presumption  ot 
guilt.  People  v.  McWhorter,  4  Barb.  -138  (ISiS)  ;  Com.  r.  Clark,  U  Gray.SGV  (ISCO). 
But  not,  it  seems, in  Louisiana.  State  r.  Carr.'JS  La.  Ann.  407  (1ST:$).  The  failure  of 
an  accused  person  to  produce  evidence  of  good  character  raises  no  presumption  that 
his  character  is  bad,  or  that  he  is  guilty  of  the  offense  charged.  State  v  Uphani.  33 
Me.  2i;i  (1SJ4);  State  r.  Collins.  3  Dcv.  117;  State  v.  O'Neal,  7  Ired.  (L.)  251  (1*47); 
Donohoe  v.  People,  6  Park.  120  (ISCt). 

8  Slate  V.  Simons,  17  N.  H.  S3  (1S45), 


552  PKESUMPTITE  EVIDENCE.       [RULE  116. 

avail  himself  of  this  privilege  raises  a  presumption  against 
him.  In  several  cases  it  has  been  held  that  it  does  not.^ 
This  conclusion  appears  to  have  been  drawn  from  a  consid- 
eration of  the  constitutional  principle  that  no  man  shall  be 
called  upon  to  give  evidence  against  himself.  But  it  vs^ould 
seem  as  illogical  for  a  court  to  reject  this  inference  as  it 
is  impossible  to  prevent  a  jury  from  taking  such  fact  into 
consideration.^  The  statutes  of  most  of  the  States  expressly 
prohibit  such  an  omission  from  being  used  by  the  prosecu- 
tion in  any  way  to  the  detriment  of  the  defendant.  But  in 
the  absence  of  such  a  provision  it  is  difficult  to  see  why  such 
a  presumption  may  not  arise,  and  be  taken  into  considera- 
tion by  a  jury.  Chief  Justice  Appleton,  of  Maine,  holds 
to  this  view  and  argues  it  at  length  in  several  cases  decided 
by  him  where  this  question  was  raised.  *'  The  statute 
authorizing  the  defendant  in  criminal  proceedings  to  testify 
at  his  own  request,"  says  he,^  "  was  passed  for  the  benefit 
of  the  innocent  and  for  the  protection  of  innocence.  The 
defendant  in  criminal  cases  is  either  innocent  or  guilty. 
If  innocent,  he  has  every  inducement  to  state  the  facts 
which  would  exonerate  him.  The  truth  would  be  his  pro- 
tection. There  can  be  no  reason  why  he  should  withhold 
it  and  every  reason  for  its  utterance."  But  where  a  person 
does  testify  in  his  own  behalf  the  fact  that  ho  does  not 
controvert  an  important  statement  of  the  witnesses  against 
him,  and  which  is  within  his  personal  knowledge,  raises 
the  presumption  that  it  is  true.* 


1  Beavers  v.  State,  58  Ind.  530;  McKenzie  t'.  State,  2G  Ark.  334;  People  v.  T^ler, 
36  Gal.  522;  Ruloflf  v.  People,  45  N.  Y.  213;  5  Lans.,  261  (1S71) ;  Com.  v.  Harlow,  110 
Mass.  411  (1872). 

*  See  State  v.  Cameron,  40  Vt.  555. 

3  State  V.  Cleaves,  59  Me.  300  (1871) ;  State  v.  Lawrence,  57  Me.  574;  State  v.  Bart- 
lett,  55Me.  200. 

*  Comstock  V.  State,  14  Keb.  205  (1883) ;  Stover  v.  People,  50  N.  Y.  315  (1874). 


PART  VI. 


GENERAL  RULES. 


(553) 


CIIAPTEE  XXI. 

GENERAL  RULES  AS  TO  PRESL^IPTIOXS. 

RULE  117. — A  "presumption"  is  a  rule  of  law  that 
courts  or  juries  shall  or  may  draw  a  particular  infer- 
ence from  a  particular  fact  or  from  particular  evi- 
dence, unless  and  until  the  truth  of  such  inference  is 
disproved. 

Suh-Rule  1.  — A  presumption  ofJaio  is  a  rule  of  law  that  a 
particular  inference  shall  be  drawn  by  a  court  or  jury 
from  a  particular  circumstance. 

Suh-Rule  2.  — A  presumption  of  fact  is  a  rule  of  laiv  that 
a  fact  otherwise  doubtful  may  be  inferred  from  a  fact 
which  is  proved. 

*«  Presumptions  are  of  two  kinds,  natural  and  legal  or 
artificial.  Tiie  natural  presumption  is  when  a  fact  is  proved 
wlierefrom,  by  reason  of  the  connection  founded  on  infer- 
ence, the  existence  of  another  fact  is  directly  inferred. 
The  legal  or  artificial  presumption  is  where  the  existence  of 
the  one  fact  is  not  direct  evidence  of  the  existence  of  the 
other,  but  the  one  fact  existing  and  being  proved,  the  law 
raises  an  artificial  presumption  of  the  existence  of  the 
other."  1 

A  presumption  is  an  inference  as  to  the  existence  of  a 
fact,  not  actually  known,  arising  from  its  usual  or  neces- 
sary connections  with  others  which  are  known."  '^ 

"A  presumption  of  any  fact  is  properly  an  inference  of 
that  fact  from  other  facts  that  are  known  ;  it  is  an  act  of 


1  Gulick  V.  Loder.  13  X.  J.  (L.)  72  (1832). 

2  ratterson  v.  McCauslaud,  3  Blaud  Ch.  71  (1830). 

(555) 


556  PRESUMrXIYE   EVIDEXCE.  [lIULE    117. 

reasoning  and  much  of  human  knowledge  on  all  subjects 
is  derived  from  that  source.  A  fact  must  not  be  inferred 
without  premises  that  will  warrant  the  inference ;  but  if  no 
fact  could  thus  be  ascertained  by  inference  in  a  court  of 
law,  very  few  oiFeuders  could  be  brought  to  punishment."  ^ 
I  *'  Presumptions  of  fact  are  but  inferences  drawn  from 
other  facts  and  circumstances  in  the  case,  and  should  be 
made  upon  the  common  principles  of  induction."  ^ 

"  Presumptions  of  fact  are  at  best  but  mere  arguments 
and  are  to  be  judged  by  the  common  and  received  tests  of 
the  truth  of  propositions  and  the  validity  of  arguments."  ^ 

*'  Presumption  is  allowed  to  prove  facts,  even  in  criminal 
cases ;  and  one  of  the  highest  modes  of  proof  is  to  show  the 
existence  of  circumstances  which  could  not  have  existed  if 
the  fact  proved  had  not  existed.  And  what  is  this  kind  of 
proof  but  presumption.  A  single  circumstance  may  have 
little  strength,  and  of  itself  afford  no  foundation  ;  but  when 
joined  to  many  more  of  the  same  nature,  all  fitting  each 
other  and  having  the  same  relation,  the  whole  united  may 
form  an  arch  strong  enough  to  support  a  presumption  of 
the  most  important  fact."  * 

*'  Juries  have  the  right  to  infer  what  a  man  intends  to  do 
and  what  he  actually  has  done,  from  his  conduct,  beyond 
the  positive  testimony  in  a  case."  ^ 

*'  Presumptions  of  fact  are  conclusions  drawn  from  par- 
ticular circumstances.  They  are  such  as  are  formed 
[found?]  by  experience  to  be  usually  consequent  upon  or 
coincident  with  the  facts  presumed,  and  cither  do  not  arise  or 
are  rebutted  if  they  do  not  correspond  with  or  are  not  ade- 
quate to  account  for  the  circumstances  actually  proved."  ^ 

In  Justice  v.  Lang,''  it  is  said :  *'  Presumptions  of  law  are, 
in  reality,  rules  of  law  and  part  of  the  law  itself,  and  the 

1  Abbott,  C.  J.,  in  R.  v.  Burdett,  4  B.  &  Aid.  161. 

»  Mason,  J.,  in  O'Gara  v.  Eisenlohr,  38  N.  Y.,  298  (1868). 

2  Lawliorn  v.  Carter,  11  Bush,  7  (1ST4) ;  Bach  v.  Cohn,  3  La.  Ann.  103  (1848). 
*  Waties,  J.,  in  Frost  v.  Brown,  2  Bay,  133  (1708). 

6  Union  Bk.  v.  Middlebrook,  33  Conn.  100  (1865). 
«  Sutphen  V.  Cushman,  35  111.  187  (1864). 

7  52  N.  y.  323  (1873). 


KULE    117.]       GENERAL   IIULES   AS   TO   PRESUMPTIONS.  557 

court  may  draw  the  inference  whenever  the  requisite  facts 
arc  developed,  whether  in  pleading  or  otherwi.se,  while  all 
other  presumptions,  however  obvious,  being  only  inferences 
of  fact,  can  not  bo  nuido  without  the  intervention  of  a 
jury.^  The  presumption  of  innocence,  of  sanity,  that  all 
men  are  free,  etc.,  are  examples  of  presumptions  of  law. 
So,  too,  a  promise  will  be  implied  from  a  legal  obligation. 
But  the  presumption  of  the  existence  of  one  fact  from  the 
existence  of  another,  that  is,  the  process  of  ascertaining 
one  fact  from  the  proof  of  another  fact,  is  within  the  ex- 
clusive province  of  the  jury.^  The  usual  presumption  as  to 
a  ship  which  becomes  distressed,  or  founders  without  appar- 
ent cause,  shortly  after  leaving  port,  is  that  she  was  unsea- 
orthy  when  she  sailed;  but  the  presumption  is  one  of  fact, 
and  for  the  jury,  and  not  of  law,  for  the  court.'  So,  long 
possession  is  evidence  of  a  grant;  but  the  cogency  of  such 
evidence  is  for  the  consideration  of  the  jury,  under  instruc- 
tions from  the  court,  and  subject  to  the  power  of  the  court 
to  set  aside  the  verdict  if  against  evidence.*  Whether  an 
argreement  to  pay  interest  is  to  be  presumed  from  the  estab- 
lished usage  and  custom  is  a  question  for  the  jury  .^  Where 
there  is  a  dispute  as  to  the  facts  which  go  to  prove  the  making 
of  a  new  promise,  whether  a  sufficient  promise  has  been  made 
to  take  the  case  out  of  the  statute  of  limitations,  is  a  mixed 
question  of  law  and  fact  for  the  jury.^  When  there  is  a 
transfer  of  property,  the  ownership  of  which  carries  with 
it  a  legal  obligation  or  a  grant  of  an  estate  subjecting  the 
grantee  to  certain  liabilities,  the  assumption  of  the  obliga- 
tion and  liability  will  result  by  legal  implication  from  the 
acceptance  of  the  transfer  or  of  the  estate.  But  both  the 
transfer  and  grant  are  executed  contracts  —  completed  acts, 
vesting  the  property,  or  estate,  in  the  transferee  or  grantee 

1  Best  on  Presumptions,  18. 

2  1  Green's  Ev.,  sec,  48. 

»  Foster  v.  Steele,  3  Bing.  (X.  C.)  892. 
*  Best  on  Presnmptions,  50. 
6  Mcech  r.  Smith,  7  Wend  315. 
«  Clark  V.  Dutclicr,  9  Cow.  674. 


558  PRESUMrTIVE   EVIDEXCE.  [rULE    117. 

and  the  parties  take  cum  onere}  So,  M'hcn  an  agreement 
inter 2)cirtes  is  subscribed  by  both  the  contracting  parties,  a 
promise  or  covenant  will  be  implied  by  one  to  do  or  per- 
form that  which  is  stated  to  be  the  consideration  of  the  acts 
expressly  undertaken  by  the  other. ^  These  presumptions 
are  usually  regarded  as  legal  presumptions  and  reduced 
to  fixed  rules,  but  whether  they  are  strictly  so  is  not  mate- 
rial. But  presumptions  of  fact,  which  come  within  the 
province  of  the  jury,  are  said  to  be  but  mere  arguments, 
of  which  the  major  premise  is  not  a  rule  of  law,  and  are 
to  be  judged  by  the  common  and  received  tests  of  the 
truth  of  propositions  and  the  validity  of  arguments.' 
Presumptive  evidence  and  the  presumptions  or  proofs  to 
which  it  gives  rise  are  not  indebted  for  their  probative  force 
to  any  rules  of  positive  law  ;  but  juries,  in  inferring  one 
fact  from  others  which  have  been  established,  do  nothinjr 
more  than  apply,  under  the  sanction  of  the  law,  a  process 
of  reasoning,  the  force  of  which  rests  on  experience  and  ob- 
servation, and  such  influences  are  presumptions  of  fact."*  A 
promise  is  not,  under  all  circumstances,  implied  from  the 
fact  that  a  promise  has  been  made  by  another  party  to  which 
that  sought  to  be  implied  would  be  the  correlative,  and  so 
the  parties  placed  under  mutual  obligations  to  each  other."  ° 
In  Hicks  v.  Silliman,^  the  court  said:  ''When  certain 
facts  are  admitted  or  proven,  the  court  takes  notice,  with- 
out further  proof,  of  all  such  presumptions  and  inferences 
arising  from  them  a-s  are  warranted  by  uniform  experience, 
and  also  all  such  consequences  as  are  known  to  flow  from 
the  laws  which  govern  matter,  and  which  are  applicable  to 
the  proven  or  admitted  facts.  For  instance,  when  it  is  shown 
that  the  roof  of  a  house,  without  gutters  or  other  obstruc- 


1  Johnson  v.  Underbill,  decided  by  this  court  February  11,  and  cases  cited  by 
Folger,  J. 

2  Pordage  v.  Cole,  1  Sandl.  319. 
2  1  Greciil.  Ev.,  sec.  44. 

*  Best  on  Pres.  Ev.,  p.  15,  sec.  14 ;  Morgan  v.  Ravey,  6  n.  &  N.  205. 
6  Churchward  r.  Coleman,  L.  K.  1  Q.  B.  173. 
«  93  111.  201  (1879). 


RULE    117.]       GENERAL   RULES   AS   TO   PRESUilTTIOXS.  559 

tions,  is  sloping  and  projects  over  an  adjoining  building, 
the  court  may  well  conclude  that  the  drip  in  time  of  rains 
will  fall  on  such  adjacent  building.  And  the  opinion  of  any 
number  of  witnesses  to  that  effect  would  scarcely  strengthen 
the  conclusion.  So,  where  it  is  shown  that  land  of  one 
person  slopes  towards  an  adjacent  tract  belonging  to  an- 
other, and  the  owner  of  the  former  is  threatening  by  artifi- 
cial means  to  o:ather  the  surface  water  from  his  own  and 
other  contiguous  lands  in  large  quantities,  and  by  means  of 
ditches  is  preparing  to  conduct  it  to  a  point  on  his  own  land 
near  the  adjacent  land,  toward  wdiich  his  own  slopes,  and 
there  permit  it  to  escape,  it  does  not  require  the  opinions 
of  witnesses  to  establish  the  conclusion  that  if  the  surface 
water  is  permitted  to  be  thus  collected  and  discharged,  it 
would  certainly  flow  upon  such  adjacent  land  in  unnatural 
and  undue  quantities.  And  in  such  case,  where  it  further 
appears  that  the  land  upon  which  this  undue  proportion  of 
surface  water  is  about  to  be  thrown  is  so  unusually  low  and 
wet  that  it  is  barely  susceptible  of  cultivation,  and  without 
any  drainage  whatever,  the  court  would  be  fully  warranted, 
without  further  testimony,  in  reaching  the  conclusion 
that  the  land  would  be  thereby  injured,  and  the  owner 
entitled  to  redress.  It  is  the  right  and  duty  of  courts,  in 
determining  what  conclusions  or  results  may  be  fairly  drawn 
from  testimony,  to  avail  themselves  not  only  of  their  knowl- 
edge and  experience  in  the  practical  affairs  of  life,  but  also 
of  matters  of  science.  A  knowledge  of  physics  is  often 
indispensable  in  determining  what  inferences  shall  be  drawn 
from  an  existing  state  of  things.  The  laws  of  gravitation, 
hydraulics,  and  mechanics  are  of  constant  application  in 
judicial  inquiries  ;  and  some  of  them  may  be  usefully  ap- 
plied here." 

niiistrations. 

I.  A  boy  under  fourteen  commits  a  crime.    Tbe  prcsumptiou  that  he 
is  legally  incapable  is  a  prcsumptiou  of  law.^ 

1  Ante,  ch.  XIV. 


5 GO  rEESOIPTIYE   EVIDENCE.  [rULE    117. 

II.  A  woman  in  the  presence  of  her  husband  robs  a  man.  The  pre- 
sumption that  she  acted  under  the  coercion  of  her  husband  is  a  presump- 
tion of  law.i 

III.  A  man  kills  another  with  a  deadly  weapon.  The  presumption 
that  he  intended  his  death  is  a  presumption  of  law.* 

IV.  A  letter  is  mailed  to  a  party  at  a  place  where  he  usually  receives 
his  letters  and  transacts  his  business.  There  is  no  presumption  of  law 
that  he  received  it.  A  presumption  of  fact  that  he  did  may,  however,  be 
drawn.* 

V.  A.  sues  B.  on  a  promissory  note.  It  is  proved  that  a  subsequent 
demand  between  A.  and  B.  on  the  same  account  and  arising  from  the 
same  cause  has  been  discharged.  This  raises  a  presumption  of  the  pay- 
ment of  the  note.  But  it  is  a  presumption  of  fact  for  the  jury  and  not 
one  of  law  for  the  court.* 

In  case  rv.,  it  was  said:  '♦  The  learned  judge  of  the  court 
below  fell  into  an  error  in  affirming  the  first  point  of  the 
defendants  that  the  law  presumes  a  note  mailed  to  the  plain- 
tiff at  a  place  where  he  usually  receives  his  letters  and 
transacts  his  business,  was  received  by  him  by  due  course 
of  mail.  A  strong  probability  of  its  receipt  may  arise,  and 
as  a  fact,  in  connection  with  the  other  circumstances,  it  was 
right  to  refer  it  to  the  jury.  But  in  their  hands  it  became 
not  a  legal  presumption  binding  on  them  as  a  rule  of  law,  but 
only  a  natural  probability,  as  it  istermed  ;  that  is  an  inference 
of  fact  of  the  probability  of  the  actual  receipt,  by  mail,  of 
the  letter  containing  the  note,  arising  from  all  the  circum- 
stances  in  evidence.  A  legal  presumption  is  the  conclusion 
of  law  itself  of  the  existence  of  one  fact  from  others  in 
proof,  and  is  binding  on  the  jury,  prima  facie  i\\\  disproved, 
or  conclusively,  just  as  the  law  adopts  the  one  or  the  other 
as  the  effect  of  proof .  The  learned  judge  was,  no  doubt,  mis- 
led by  the  generality  of  the  language  of  Mr.  Greenleaf ,  in  his 
treatise  upon  Evidence,  in  relation  to  letters  sent  by  mail.^ 
But  the  authorities  cited  by  him  for  the  statement,  all  refer 


1  Ante,  ch.  XIV. 

2  Ante,  cli.  XIV. 

3  Tanner  r.  Hughes,  63  Pa.  St.  289  (18C6). 
<  Ham  V.  IJarret,  28  Mo.  388  (1859). 

Vol.  1,  sec.  40. 


RULE    117.]       GENERAL    RULES    AS   TO   PRESUMPTIONS.  5G1 

to  notice  of  the  dishonor  of  bills  or  non-payment  of  notes. 
The  necessity  of  notice  of  non-acceptance  or  non-payment, 
and  the  inconvenience  of  giving  it  by  special  messenger  to 
those  residing  at  a  distance,  led  to  the  adoption  of  the 
post  by  commercial  usage  which  has  settled  into  law. 
Hence  the  remark  of  the  hitc  C.  J.  Gibson,  in  Jonp.s  v. 
Leiois^  that  no  judge  has  said  the  post-oflSce  is  not  a  legal 
place  of  deposit  when  the  indorser  lives  in  the  country,  or 
at  such  distance  as  would  make  the  employment  of  a  special 
messenirer  burdensome.  But  that  this  rule  is  the  mere 
creation  of  commercial  usage  and  not  the  result  of  the  gen- 
eral principles  of  conduct  which  lie  at  the  foundation  of 
legal  conclusions,  is  rendered  palpable  by  his  admission  in 
that  case  that  notice  by  de}){)sit  in  the  post-office  to  one 
living  in  the  same  city  is  insufficient.  This  was  expressly 
decided  at  the  same  time  in  Kraum  v.  McDoiveU.'^  There 
is  another  class  of  cases  where,  by  the  acts  of  parties,  the 
mail  is  made  the  vehicle  of  their  communications,  as  where 
a  proposition  by  mail  is  accepted  by  the  same  channel. 
But  by  no  law  of  the  United  States  in  reference  to  the  mails, 
or  of  the  State,  is  the  post  made  a  legal  channel  of  commu- 
nication which  a  party  may  adopt  and  make  compulsory 
upon  his  correspondent.  It  was  error,  therefore,  to  hold 
that  the  laia  concludes  that  the  note  was  received  by  the 
plaintiff,  from  the  mere  fact  of  a  deposit  of  it  in  a  letter 
mailed  at  a  distant  office,  directed  to  him  at  the  place  where 
he  usually  received  his  letters  and  transacted  his  business. 
The  purpose  here  was  to  show  payment  of  the  note.  This 
was  done  by  the  production  of  the  note  itself,  without  a 
receipt  or  mark  of  payment  or  cancellation  upon  it,  and 
without  any  evidence  of  its  delivery  to  the  i)laintiff  except 
the  deposit  in  the  mail.  Payment  was,  therefore,  to  be 
proved  by  a  double  presumption  at  law,  first,  the  legal  pre- 
sumption of. delivery  from  the  deposit  in  the  post-office, 
and,  secondly,  the  presumption  of  its  return  into  the  hands 

J  8  W.  &  S.  15.  2  8  W.  &  S.  138. 

30 


5G2  PRESUilPTIVE   EVIDEXCE.  [kULE    117. 

of  the  drawees  by  delivery  on  payment.  Now,  while  the 
facts,  when  all  collected  by  the  jiuy,  might  have  satisfied 
them  that  the  note  was  actually  in  the  possession  of  the 
plaintiff,  by  receipt  through  the  mail,  and  found  its  way 
back  into  the  hands  of  the  defendants  by  their  payment  of 
it ;  it  certainly  was  erroneous  to  instruct  them  that  the  pos- 
session of  the  note  by  the  plaintiff  was  a  conclusion  of  law 
from  the  fact  of  mailino;  it  to  him." 

In  case  V.  it  was  said  ;  **  The  instructions  asked  by  the 
defendant  and  refused  by  the  court,  of  which  complaint  is 
made,  were  properly  refused,  inasmuch  as  they  required  the 
court  to  declare  that  to  be  a  presumption  of  law  w^hich 
was  only  a  presumption  of  fact,  to  be  raised  or  not  as  the 
Jury  would  determine  from  the  circumstances  in  evidence. 
There  are  presumptions  of  law  and  presumptions  of  fact. 
The  former  are  of  a  nature  to  exclude  all  contrary  proof, 
and  which  the  court  will  not  suffer  the  jury  to  disregard ; 
whilst  the  latter  are  founded  in  experience,  and  may  be 
raised  or  not  as  the  jury  may  determine,  and  for  a  disre- 
gard of  which  the  court  grants  or  refuses  a  new  trial,  as 
upon  the  evidence  in  all  other  cases  of  trial  by  jury. 
Where  a  presumption  is  one  of  fact  merely,  the  court  is 
not  warranted  in  declaring  it  to  the  jury  as  a  presumption 
authoritatively  raised  by  law,  but  should  direct  them  that 
from  the  evidence  it  is  their  province  to  determine  whether 
they  will  raise  the  presumption  or  not.  The  jury,  looking 
to  the  bench  for  the  law,  would  naturally  take  it  that  such 
a  declaration  was  binding  and  left  them  no  discretion. 
"V'^licre  the  facts  are  before  the  jury,  the  presumptions  or 
inferences  they  warrant  are  questions  purely  for  them.^ 
Where  presumptions  of  fact  founded  in  experience  and  in 
the  usual  course  of  the  dealings  of  men  are  not  repelled 
by  contrary  evidence  they  should  be  respected  by  juries, 
and  they  have  no  power  arbitrarily  to  reject  them.  They 
must  stand  until  they  are  overthrown  by  contrary  proof. 

1  Best  on  Presumptions,  IG,  51. 


RULE    117.]       GEXEKAL    RULES    AS    TO   rRESUMrXIOXS.  Sti3 

Presumptions  of  payment  arising  against  chiims  for  debt 
alleged  to  remain  unpaid,  while  subsequent  demands  due 
on  the  same  account  and  arising  from  the  same  cause  are 
proved  or  admitted  to  have  been  regularly  discharged,  are 
presumptions  of  fact  liable  to  be  repelled  by  proof  to  the 
contrary,  and  to  be  found  to  have  application  to  a  case  by 
a  jury  subject  to  the  power  in  the  court  of  granting  a  new 
trial."  It  is  held  in  California  that  it  is  error  for  the 
court  to  instruct  the  jury  that  certain  proof  adduced  raises 
a  presumption  of  fact,  for  this  is  "  charging  the  jury  with 
respect  to  matter  of  fact,"  a  thing  prohibited  by  the  con- 
stitution of  that  State. ^ 

In  Holmes  v.  Himt,"^  it  was  held  that  a  statute  making 
the  report  of  an  auditor  prima  facie  evidence  upon  such 
matters  as  are  embraced  in  the  order  to  him  was  constitu- 
tional. In  an  exhaustive  opinion  Gray,  C.  J.,  reviews  the 
instances  of  the  creation  of  presumptions  of  law  by  the  Leg- 
islature. ♦' The  constitutional  power  of  the  Legislature," 
snys  he,  "to  prescribe  rules  of  evidence  is  well  settled.^ 
This  power  has  been  often  exercised  by  the  Legislature, 
with  the  sanction  of  the  courts,  so  as  to  chano;e  the  burden 
of  proof,  or  to  affect  the  question  which  shall  be  deemed 
prima  facie  evidence  at  the  trial  before  the  jury.  For  in- 
stance the  Legislature  may  enact  that  the  deed  of  a  collector 
of  taxes  shall  he  prima  facie  evidence  that  the  land  has  been 
sold  for  non-payment  of  taxes  at  a  time  and  in  a  manner 
authorized  by  law.*  So  it  may  enact  that  the  record  of  a 
deed  shall  be  evidence  that  it  has  been  duly  acknowledged 
or  proved  before  a  magistrate  without  any  record  of  the 
certificate  or  of  the  proof  of  acknowledgment.'^  A  statute 
providing   that  a    notary's  protest   of   a  promissory  note 

1  People  V.  Walden,  51  CaL  588  (1S77) ;  People  r.  Carrillo,  54  Cal.  C3  (1879) ;  Stone 
V.  Geyser  Mining  Co.,  52  Cal.  517  (1877). 

»  122  Mass.  505. 

3  Parsons,  0.  J.,  In  Kendall  r.  Kinsrston,  5  Mass.  524,  53t ;  Washington,  J.,  and 
Marshall,  0.  J.,  in  Ogilen  r.  Saunders,  12  W  heat.  213,  2G2,  349. 

<  Pillow  r.  Roberts,  13  How.  4T2,  476;  Callaman  v.  Hurley,  93  U.  S.  337;  Hand  v. 
Ballon,  2  Kcrnan,  541 ;  Cooley  on  Const.  Lira.  (3d  ed.)  3C7, 3C8. 

5  Webb  V.  Deun,  17  How.  576. 


5G4  PEESU3IPTn'E   EVIDENCE.  [rULE    117. 

should  be  evidence  of  the  facts  stated  thereon  has  been  held 
by  the  Supreme  Court  of  Maine  to  be  constitutional,  and 
applicable  to  a  protest  made  before  its  passage.^  By  our 
own  statutes,  the  recorded  certificate  of  two  witnesses  is 
made  sufficient  evidence  of  an  entry  to  foreclose  a  mort- 
gage, and  the  affidavit  of  the  mortgager  himself  evidence 
that  the  requisitions  of  a  power  of  sale  have  been  complied 
with.'^  Mr.  Justice  Story  gave  the  fullest  effect  to  an  act  of 
Congress  which  provided  that  the  certificate  of  a  vice-con- 
sul, that  a  master  had  refused  to  take  a  destitute  seaman  on 
board,  should  he  prima  facie  evidence  in  a  suit  against  the 
master  for  the  penalty  imposed  on  him  for  such  refusal.' 
The  statutes  of  this  Commonwealth  have  imposed  upon  the 
defendant  in  criminal  prosecutions  the  burden  of  proving 
any  license,  appointment  or  authority,  relied  or  as  a  justi- 
fication, which  the  Commonwealth,  but  for  these  statutes, 
would  have  been  obliged  to  disprove.*  Even  statutes  pro- 
viding that  in  prosecutions  for  the  unlawful  sale  of  intoxicat- 
ing liquors,  delivery  in  or  from  any  building  or  place 
other  than  a  dwelling-house,  '  shall  be  deemed  prima  facie 
evidence  of  a  sale,'  have  been  held  constitutional.^  In 
Goshen  v.  Richmond,^  it  was  held  that  the  provisions  of 
the  statutes  of  1845,'  reenacted  in  the  general  statutes,^  that 
'  the  validity  of  a  marriage  shall  not  be  questioned  in  the 
trial  of  a  collateral  issue,  on  account  of  the  insanity  or 
idiocy  of  either  party,  but  only  in  a  process  duly  instituted 

1  Fales  V.  Wadsworth,  23  Me.,  553. 

=  Gen.  Stats.,  chap.  140,  sees.  2,  42,  43;  Hawks  v.  Brigham,  16  Gray,  561;  Ellis  v. 
Drake,  8  Allen,  161,  163;  Thompson  v.  Keriyon,  100  Mass.  108;  Childs  t;.  Dolan,  5 
Allen,  319;  Field  v.  Gooding,  106  Mass.  310,  312. 

2  U.  S.  St.,  February  23,  1803,  sect.  4;  U.  S.  Rev.  Stats.,  sect  4578;  Matthews  v. 
Offley,  3  Sumn.,  115,  123. 

«  Sts.  1844,  ch.  102;  1864,  ch.  121;  Gen.  Stats.,  ch.  172,  sec.  10;  Commonwealth  v. 
Thurlow,  24  Pick.  374;  Commonwealth  v.  Kelly,  10  Gush.  69;  Commonwealth  v. 
Lahey,  8  Gray,  459;  Commonwealth  v.  Carjieuter,  100  Mass.  204. 

'•>  Stats.  1852,  ch.  322,  sec.  12;  1855,  ch.  215,  sec.  34;  Commonwealth  v.  Williams,  6 
Gray,  1;  Commonwealth  v.  Rowe,  14  Gray,  47.  See,  also.  State  v.  Cunningham,  23 
Conn.  195;  State  v.  Hurley,  54  Me.,  562;  U.  S.  Stat.  July  18,  1866,  sec.  4;  U.  S.  Rev. 
Stats.,  sec.  3082. 

«  4  Allen,  458. 

'  Chap.  222. 

8  Chap.  107,  sec.  2. 


KULE    117.]       GENERAL   ItULES    AS   TO   PRESUIMTTIOXS.  5G5 

in  the  lifetime  of  both  parties  for  determining  such  valid- 
it}','  applied  to  marriages  existing  at  the  time  of  its  pas- 
sage; and  Mr.  Justice  Metcalf,  delivering  the  opinion  of 
the  court,  said :  '  The  defendants  deny  that  it  was  the 
intention  or  Avithin  the  power  of  the  Legislature  to 
make  this  enactment  retrospective,  that  is,  to  prohibit 
the  admission  of  evidence  to  show  the  invalidity  of 
previously  existing  marriages.  But  the  court  do  not 
doubt  either  that  intention  or  that  power  of  the  Legislature. 
That  body  has  unquestionable  authority  to  change  the  com- 
mon-law rules  of  evidence,  to  prescribe  the  modes  of  proof, 
and  to  direct  who  may  or  may  not  be  competent  witnesses. 
And  this  authority  has  often  been  exercised.  Thus,  the 
burden  of  proof,  which  by  the  common  law  is  on  one  party, 
has  in  certain  cases  been  put  by  statute,  on  the  other. 
And  recent  statutes  have  so  far  changed  the  pre-existing 
rules  of  evidence,  as  to  make  all  persons  (with  very  few 
exceptions)  who  have  sufficient  understanding,  competent 
witnesses,  not  only  in  the  trial  of  other's  actions,  but  also 
of  their  own.  Those  statutes  have  been  held  to  render 
these  persons  competent  to  testify,  not  only  concerning 
matters  of  w^hich  they  had  knowledge  before  they  were 
made  competent,  but  also  in  cases  that  were  pending  be- 
fore.'^ The  existing  witness  act  omits  the  exception 
(contained  in  the  statutes  in  force  when  that  opinion  was 
delivered)  of  the  case  in  which  one  party  to  the  original 
contract  or  cause  of  action  is  dead  or  insane,  and  all  other 
exceptions,  in  civil  cases,  save  that  of  private  conversations 
between  husband  and  wife.-  In  a  very  recent  case,  it  was 
held  by  the  Court  of  Appeals  of  New  York,  that  a  special 
statute  authorizing  testimony  as  to  the  title  to  a  certain  es- 
tate to  be  perpetuated  under  the  direction  of  the  court  of 
chancery,  and  making  \t  prima  facie  evidence  of  the  facts 
set  forth  in  the  examination  of  the  witness,  if  the  chaucel- 


1  See,  also,  Monson  v.  Palmer,  8  jVllen,  551, 556. 

2  St.  1870,  p.  393. 


566  PKESUiJPTlVE   EVIDENCE  [rULE    117. 

lor  should  be  of  opinion  that  the  depositions  furnished  good 
prima  facie  evidence  of  such  facts,  but  not  giving  any 
adverse  party  the  right  of  cross-examination,  was  within 
the  constitutional  authority  of  the  Legislature.  And  the 
court  said :  '  The  rules  of  evidence  are  not  an  exception  to 
the  doctrine  that  all  rules  and  regulations  affecting  reme- 
dies are,  at  all  times,  subject  to  the  modification  and  con- 
trol by  the  Legislature.  The  changes  which  are  enacted 
from  time  to  time  may  be  made  applicable  to  existing  causes 
of  action,  as  the  law  thus  changed  would  only  prescribe  the 
rules  for  further  controversies.  It  maybe  conceded  for  all 
the  purposes  of  this  appeal,  that  a  law  that  should  make 
evidence  conclusive,  which  was  not  so  necessarily  in  and  of 
itself,  and  thus  preclude  the  adverse  -party  from  showing 
the  truth,  would  be  void,  as  indirectly  working  a  confisca- 
tion of  property,  or  a  destruction  of  vested  rights.  But 
such  is  not  the  effect  of  declaring  any  circumstance  or  any 
evidence,  however  slight,  prima  facie  proof  of  a  fact  to  be 
established,  leaving  the  adverse  party  at  liberty  to  rebut  and 
overcome  it  by  contradictory  and  better  evidence.  That  this 
may  be  done  is  well  settled  by  authority.'  ^  The  statutes  al- 
lowing every  party  to  testify  in  his  own  behalf,  even  after  the 
death  of  the  other  party  to  the  original  contract  or  cause  of 
action ,  the  statutes  making  deeds  of  public  officers ,  or  convey- 
ances recorded  at  the  mere  request  of  the  grantee,  or  ex  parte 
affidavits,  without  opportunity  of  cross-examination,  ^Wma 
facie  evidence,  and  the  statutes  making  particular  facts 
prirr.a  facie  evidence  against  defendants  in  criminal  prose- 
cutions, all  appear  to  us  to  have  worked  greater  changes  in 
the  position  of  the  parties  at  the  trial  before  the  jury,  than 
a  statute  that  merely  gives  the  effect  of  prima  facie  evi- 
dence to  an  auditor's  report,  made  after  full  hearing  of 
both  parties,  and  upon  a  matter  involving  the  investigation 
of  accounts,  which  can  not,  in  the  view  of  the  Legislature 
that  framed  the  statute,  and  of  the  court  that  makes  the 

1  Howard  v.  Mert,  (4  X.  Y.  262, 268. 


RULE    117.]       GENERAL   RULES   AS   TO   PRESUMPTIONS. 


;g7 


order  of  reference  in  the  particular  case,  be  conveniently  or 
intelligently  tried  by  a  jury,  without  the  assistance  of  a 
previous  examination  and  report  by  an  auditor.     And  we 
do  not  find  anything,  in  the  authorities  cited  at  the  bar, 
that  creates  any  doubt  in  our  minds  upon  this  subject.     In 
Uiiiled  /States  v.  Rathbone,^  the  only  point  decided   was 
that  the  constitution  and  laws  of  the  United  States  did  not 
authorize  a  Federal  court,  sitting  in  the  State  of  New  York, 
to  order  a  case  to  be  referred  to  arbitration,  in  accordance 
with  a  statute  of  that  State.     Mr.  Justice  Thompson  said: 
'  How  far  this  view  of  the  case  may  affect  the  validity  of 
State  law  is  a  point  not  drawn  in  question,  or  intended  to 
be  considered.'  -     And  the  constitutionality  of  that  statute 
has  since  been  affirmed  by  the  Supreme  Court  of  that  State. ^ 
IwFUmipion  v.  Somerset,'^  avuX  Copp  v.  Ilanniker ,^  ixciiows 
for  damages  for  defects  in  highways,  not  involving  any  in- 
vestigation of  accounts,  had  been  referred  to  commission- 
ers  or   referees,  under   statutes  that   provided   that  their 
reports  should  be  prima  fade  evidence  upon  a  subsequent 
trial  before  a  jury.     The  decision  of  a  majority  of  the  court 
in  Plimpton  v.  Somerset,  that  such  a  statute,  as  applied  to 
such  a  case,  was  unconstitutional,  could  not  be  extended  to 
the  case  of  an  account,  consistently  with  the  previous  de- 
cisions of  the  same  court  in  Broioii  v.  Kimball,^  and  Stod- 
dard V.   Chapin.     In  Uobb  v.  Ilanniher,''  the  court  held 
the  provision  for  the  appointment  of  a  refei'ee  to  be  valid, 
and  did  not  decide  upon  the  validity  of  that  part  of  the 
statute  which  provided  that  his  report  should  be  evidence 
upon  a  trial  before  a  jury;  and  the  only  judge,  who  made 
any  remarks  upon  that  point,  said  in  regard  to  the  auditor 
law  of  New  Hampshire  of  1823,  which  was  copied  from  our 


1  2  rainc,  573. 

2  2  Paine,  583. 

s  Lee  V.  TUlotson,  24  Wend.  337. 
*  33  Vt.  283. 
»  55  N.  U.  179. 
«  12  Vt.  617. 
1  15  Vt.  413. 


T)QS  PRESmiPTIVE  EVIDENCE.  [kULE    117. 

statute  of  1817  :  '  The  validity  of  an  act,  which  has  been 
in  such  extensive  operation  and  universally  acquiesced  in 
for  fifty   years,  will  probably  not  be  questioned.'  ^     The 
constitutionality  of  the  New  Hampshire  statute  of  1823  has 
since,  upon  elaborate  consideration,  been  fully  established.^ 
In  King  v.  Hopkins,^  which  was  an    action    on  the  case 
for  flowing  the  plaintiff 's  land,  it  w^as  decided  that  the  pro- 
vision which  made  the  report  of  referees  evidence  at  the 
trial  before  the  jury  was  unconstitutional.     But  the  weight 
of  that  decision  as  an  authority  is  greatly  impaired,  to  say 
the  least,  by  the  fact  that  it  was  made,  under  the  peculiar 
judicial  system  existing  at  the  time  in  that  State,  by  one 
justice  of  the  Supreme  Court  of  Judicature,  and  one  judge 
of  the  Circuit  Court,  against  the  dissent  of  the  chief  justice 
of  the  Superior  Court,  and  reversing  the  ruling  of  the  third 
justice  of  the  Superior  Court,  who  presided  at  the  trial ; 
so  that  the  final  result  was  against  the  opinion  of  a  majority 
of  the  judges  of  the  highest  court  of  the  State.     And  we 
are  not  now  required  to  pass  upon  the  validity  of  such  a 
provision,  as  applied  to  a  case  which  does  not  call  for  the 
investigation  of  accounts,  but  presents  a   simple  issue  of 
fact  or  damages,  suitable  for  the  determination  of  a  jury  in 
the  first  instance.     The  only  case  cited  by  the  learned  coun- 
sel for  the  defendant,  which  supports  his  position,  is  Fran- 
cis V.  Baker,  recently  decided  by  the  Supreme   Court  of 
Ehode  Island,  in  which  a  statute,  substantially  correspond- 
infy  to  our  own,  was  held  unconstitutional,  as  impairing  the 
rif^ht  to  trial  by  jury.     The  respect  due  to  a  decision  of  the 
highest  court  of  a  neighboring  State,  and  the  ability  of  the 
arirument  which  has  been  addressed  to  us,  have  induced  us 
to  treat  the  matter  at  more  length  than  we  should  otherwise 
have  thought  necessary  ;  but   after  full   consideration,  we 
are  unanimously  of  opinion  that  neither  that  decision,  nor 
the  reasons  assigned  in  support  of  it,  are  sufficient  to  justify 


1  55  N.  H.  209. 

2  Doyle  V.  Doyle,  56  N.  n.  567;  Perkins  v.  Scott,  57  N.  II.  65. 
8  57  X.  H.  334. 


RULE    118.]       GENERAL   RULES   AS   TO   PRESUMRTIONS.  5G9 

US  in  overturning  the  law  of  this  Common'.vcalt  ,  as  estab- 
lished, upon  Avhat  appears  to  us  to  l)e  firm  foundations,  by 
the  practice  of  more  than  half  a  century." 

RULE  lis.  — A  presumption  iniist  be  ba.se<l  upon  a  fact,i 
and  not  upon  iuference  or  upon  another  presump- 
tion.^ 

Illustrations. 

I.  A.  sues  B.  for  deceit  in  fraudulently  representing  the  value  of  the 
property  of  a  corporation  and  inducing  him  to  purchase  stock  therein. 
The  articles  of  association  containing  these  false  statements  were  filed 
of  record  as  required  by  law.  There  is  no  evidence  of  fraudulent  rep- 
Fesentations  made  to  A.  inducing  him  to  purchase  the  stock.  It  can  not 
be  pi'esumed  that  A.  saw  these  articles  and  was  induced  to  purchase 
relying  on  the  statements  therein  contained.^ 

II.  B.  asks  to  be  discharged  from  custody  on  a  habeas  corpus  because 
the  grand  jury  has  found  no  indictment  against  him.  It  only  appears 
that  a  term  of  court  has  passed  since  B.'s  imprisonment.  The  law  will 
presume  that  court  was  held  and  a  grand  jury  impaneled  according  to 
law.  But  there  is  no  presumption  that  the  grand  jury  heard  evidence  in 
B.'s  case.* 

III.  The  question  was  whether  there  was  any  other  property  on 
which  to  levy  an  execution  except  a  certain  negro  boy.  It  was  proved 
that  the  sheriff  had  levied  only  on  the  negro  boy.  From  this  alone  it 
could  not  be  presumed  that  there  was  no  more  property.^ 

IV.  A  contract  between  an  agent  and  an  insurance  company  provides, 
as  a  part  of  his  compensation,  that  he  shall  receive  a  certain  commission 
on  all  premiums  paid  on  renewals  of  policies  as  well  as  when  they  are  first 
taken.  Being  discharged  by  the  company  he  brings  suit  and  claims  that 
since  his  discharge  there  have  been  renewals  of  policies  taken  by  him  on 
which  he  is  entitled  to  commissions.  There  is  no  proof  that  any  policies 
liave  been  renewed  or  premiums  paid.    This  can  not  be  presumed.* 

V.  It  is  sought  to  be  shown  that  the  driver  of  a  street  car  which  ran 
over  and  injured  a  child  was  negligent.     It  is  proved  that  the  drivers  on 

1  Richmond  v.  Aiken,  25  Vt.  324  (1853);  Doolittle  r.  nolton,  26  Vt.  5SS  (1S54); 
Brunswick  r.  McKcan,  4  Me.  50S  (1827) ;  Kllis  v.  Ellis,  58  Iowa,  720  (1SS2). 

-  Douglass  t".  Mitchell, 35  Pa.  St.  440  (1860).  "Presumptions  must  always  rest 
upon  acknowlccigod  or  well  established  facts,  aud  not  upon  prusumptiout;."  Kich 
mond  V.  Aiken,  25  Vt.  326  (1853). 

••«  McAlcer  v.  .McMurray,  58  Pa.  St.  126  (1863). 

«  People  V.  Ilessing,  23  HI.  410  (1S02). 

<•  Pennington  r.  Yell,  U  Ark.  236  (1850) ;  and  sec  U.  S.  r.  Ross,  P2  U.  S.  2S3  (1S75>. 

6  Manning  v.  lasuianco  Co.,  100  U.  S.  093  (1879) ;  'Wheelton  v.  Ilardesty,  8  El.  & 
Bl.  232  (1857). 


570  PRESU31PTIVE   EVIDENCE.  [rULE    118. 

the  line  arc  allowed  only  a  limited  time  for  rest  and  sleep.  The  pre- 
sumption can  not  arise  that  the  driver  was  negligent.  It  is  proved  that 
the  driver  was  asleep  at  the  time.  The  presumption  arises  that  he  was 
negligent.  1 

VI.  A.  claims  certain  property  as  his  —  e.g.,  a  negro  boy  —  from  B. 
B.  obtained  the  property  by  purchase  at  an  execution  sale  of  the  prop- 
erty of  C.  The  question  is  whether  A.'s  presence  at  the  sale  raises  a 
presumption  of  his  acquiescence  so  as  to  estop  him.  It  would  if  A.  is 
proved  to  have  been  present.  It  would  not  if  it  is  only  proved  that  A. 
was  near  by  at  the  time.^ 

"  Xot  a  word  of  testimony,"  it  was  said  in  case  I., 
"  appears  to  have  been  given  by  the  plaintiff  to  show  that 
he  was  induced  to  purchase  any  stock  in  the  company  by 
direct  representations,  true  or  untrue,  by  any  person.  This 
essential  was  attempted  to  be  supplied  by  presumptions : 
one  to  stand  as  a  postulate,  and  another  as  the  inference. 
This  is  not  admissible.  I  can  not  well  conceive  of  a  case 
where  a  presumption  of  fact  can  ever  be  drawn  from  pre- 
sumptions of  the  same  kind.  The  practical  operation  of 
the  theory  in  this  particular  is  that  it  is  to  be  presumed 
that  the  plaintiff  must  have  seen  and  inspected  the  certifi- 
cate of  organization  of  the  company,  either  in  the  auditor 
general's  or  recorder'soffice,  and  by  its  false  presentation  he 
is  presumed  to  have  been  induced  to  purchase  the  stock  in 
question.  Neither  one  nor  the  other  of  these  propositions 
asserts  a  natural  or  even  probable  result.  They  are  not 
such  presumptions  as  to  induce  the  belief  that  it  would  be 
most  likely  that  the  plaintiff  would  examine  the  certificate 
before  purchasing.  That  would  depend  on  many  things  — 
nmonirst  others  the  business  habits  of  the  man,  and  his  con- 
venient  opportunity.  The  paper  itself,  if  seen,  would 
hardly,  if  in  proper  form,  have  held  out  any  very  peculiarly 
lively  inducements  to  buy.  A  much  greater  probability  is 
that  the  plaintiff  purchased  the  oil  stocks  because  such 
stocks  were  ju.st  then  in  great  demand." 

In  case  II.  it  was  said:   "The  record  fails  to  show  that 


1  Philadelphia  City  Passenger  R.  Co.  v.  Henrice,  92  Pa.  St.  431  (18S0). 

2  Danlcy  v.  Rector,  10  Arii.  311;  50  Am.  Dec.  242  (1849). 


RULE    118.]      GENERAL   RULES   AS   TO   rKESUMrXIONS .  571 

the  grand  jury  heard  evidence  or  acted  upon  the  accusation 
af^ainst  him.  Tiie  allegation  that  such  action  was  had  by 
that  body  was  not  proved.  The  law  will  not  presume  that 
the  evidence  was  heard  and  that  they  ignored  a  bill. 
Although  it  may  be  a  legal  pre;?umption  that  a  court  was 
held  at  the  time  fixed  by  law  and  a  grand  jury  was  regu- 
larly impaneled,  still  it  will  not  be  presumed  that  they 
acted  upon  a  particular  case." 

In  case  III.  it  was  said :  "  There  was  an  effort  to  raise  a 
presumption  upon  a  presumption.  The  presumption  that 
there  was  no  more  property  is  based  upon  the  presumption 
that  the  sheriff  did  his  duty.  That  is  to  say,  it  was  his 
duty  to  levy  the  whole  debt  if  there  was  sufficient  property 
in  his  county;  as  he  did  not  levy  the  whole  debt  —  ergo^ 
then  there  was  no  more  property  in  his  county.  Now,  the 
law  will  not  presume  on  such  a  basis  as  this.  Legal  pre- 
sumptions must  be  based  upon  facts  and  not  upon  presump- 
tions." 

In  case  rv.  it  was  said:  **  The  defendant  might  have 
resorted  to  a  subpoena  duces  tecum ^  or  to  an  order  of  the 
court  to  produce  papers  and  books,  or,  perhaps,  to  a  bill  of 
discovery.  He  did  neither.  He  simply  proved  as  a  fact, 
that  there  were  life  policies  in  existence,  secured  through 
his  agency,  renewal  premiums  upon  which  fell  due  before 
the  suit  was  brought.  His  evidence  stopped  there,  and  he 
now  complains  that  the  jury  was  not  allowed  to  presume 
from  that  fact  that  the  renewal  premiums  had  been  paid  to 
the  plaiutift',  and  to  presume  it  against  a  party  who  was  not 
in  the  wrong,  a  party  who  had  rightfully  dismissed  him 
from  his  agency,  and  who  was  under  no  obligation  to  col- 
lect the  premiums  at  all.  But  was  that  a  conclusion  which 
the  jury  should  have  been  permitted  to  draw  from  the  fact 
proved?  It  is  error  to  submit  to  a  jury  to  find  a  fact  of 
which  there  is  no  competent  evidence.  From  the  fact  that 
a  debt  existed,  it  does  not  follow  as  a  necessary  or  even 
reasonable  sequence  that  it  has  been  paid.  Kor  is  there 
any  presumption  of   its  payment  upon  which  a  jury  can 


572  PRESUMPTIVE  EVIDENCE.       [kULE  118. 

act.  Certfiinly  none  until  after  the  lapse  of  twenty  years. 
Much  less  can  such  a  presumption  arise  in  regard  to  the 
pa^'ment  of  renewal  premiums  upon  policies  of  insurance, 
such  premiums  not  being  debts  due  to  the  insurers,  and  not 
being  collectible  as  debts.  We  do  not  question  that  a  jury 
may  be  allowed  to  presume  the  existence  of  a  fact  in  some 
cases  from  the  existence  of  other  facts  which  have  been 
proved.  But  the  presumed  fact  must  have  an  immediate 
connection  with,  or  relation  to,  the  established  fact  from 
which  it  is  inferred.  If  it  has  not  it  is  regarded  as  too 
remote.  The  only  presumptions  of  fact  which  the  law 
recognizes  are  immediate  inferences  from  facts  proved. 
Remarking  upon  this  subject  in  United  States  v.  Hoss,^  we 
said :  '  Whenever  circumstantial  evidence  is  relied  upon  to 
prove  a  fact,  the  circumstances  must  be  proved,  and  not 
themselves  be  presumed.'  Referring  to  the  rule  laid  down 
in  Starkie  on  Evidence,^  we  added  :  *  It  is  upon  this  prin- 
ciple that  courts  are  daily  called  upon  to  exclude  evidence 
as  too  remote  for  the  consideration  of  the  jury.  The  law 
requires  an  open  and  visible  connection  between  the  prin- 
cipal or  evidentiary  facts  and  the  deductions  from  them, 
and  does  not  permit  a  decision  to  be  made  on  remote  infer- 
ences.^ A  presumption  which  a  jury  may  make  is  not  a 
circumstance  in  proof,  and  it  is  not,  therefore,  a  legitimate 
foundation  for  a  presumption.  There  is  no  open  and  visible 
connection  between  the  fact  out  of  which  the  first  presump- 
tion arises  and  the  fact  sought  to  be  established  by  the 
dependant  presumption.*  If  these  principles  be  applied  to 
the  present  case,  the  inadmissibility  of  the  presumption 
which  the  defendant  contends  the  court  should  have  per- 
mitted the  jury  to  draw  becomes  apparent.  That  renewal 
premiums  to  a  certain  amount  upon  which  he  was  entitled 
commission,  had  been  paid  to  the  company  was  the  ulti- 


1  92  U.  S.  281,  284. 

2  p.  80. 

3  Best  on  Ev.  95. 

*  Douglass  V.  Mitchell,  53  Pa.  St.  410. 


RULE    118.]       GENERAL   RULES   AS    TO   rRESUMFTIONS.  573 

mate  fact  which  was  ncccssaiy  to  be  proved.  What  the 
evidence  did  prove  was,  that  there  were  policies  in  lorce  on 
the  2d  of  June,  1871,  the  annual  premiums  upon  which 
were  $87,000;  that  he  would  be  entitled  to  commissions 
upon  renewals  of  the  policies,  if  they  should  be  thereafter 
renewed,  and  if  the  renewal  premiums  should  be  paid  to 
the  company,  and  that  these  premiums  were  to  be  collected 
by  his  sub-apjents  and  paid  over  by  them.  These  were  the 
primary  facts.  Everything  more  was  left  to  presumption. 
The  jury,  therefore,  were  to  presume  that  the  policies  did 
not  lapse,  and  that  they  were  renewed.  Built  on  this  pre- 
sumption was  another,  namely,  that  the  renewal  premiums 
were  paid  to  the  agents ;  and  upon  this  a  further  presump- 
tion, that  the  premiums  had  been  paid  over  by  the  agents 
to  the  company,  or  had  been  immediately  collected  by  it. 
This  appears  to  us  to  have  been  quite  inadmissible.  A 
verdict  of  a  jury  found  upon  such  evidence  would  have 
been  a  mere  guess." 

In  case  V.  it  was  said:  "The  fact  to  be  proved  was 
whether  the  driver  of  car  No.  127  had  been  guilty  of  negli- 
gence upon  the  occasion  in  question,  in  consequence  of 
which  the  child,  Charles  Ilenrice,  had  been  run  over  and 
injured.  Was  the  evidence  objected  to  of  such  a  character 
as  tended  to  prove  this  fact  ?  It  was  undoubtedly  compe- 
tent to  prove  the  condition  of  the  driver  at  the  time  the 
accident  occurred;  that  he  was  intoxicated,  or  absent,  or 
for  any  other  reason  incompetent  to  attend  to  his  duties.^ 
These  were  specific  matters  which  might  have  been  proved; 
but  how  the  fact  that  other  drivers  and  other  conductors 
were  allowed  only  a  certain  number  of  hours  for  sleep  and 
rest  could  affect  the  question  of  this  particular  driver  upon 
this  particular  occasion  is  not  apparent.  It  is  easy  to  see, 
however,  how  such  evidence  might  seriously  intiuence  the 
jury  and  increase  the  damages.     When  a  fact  is  established 

Pennsylvania  Railroatl  Co.  r.  Docks,  7  V.  F.  Smith,  339;  Mansfield  Coal  and  Coke 
Co.  V.  McEucry,  10  Morris,  ISJ. 


Or 


PRESOITTIVE   EVIDENCE.  [rULE    118. 


in  a  cause  by  evidence  we  may  properly  be  allowed  to  draw 
therefrom  such  inferences  as  are  logically  deducible  from 
it.     Thus  if  it   be  shown  that  the  driver   was  asleep   or 
intoxicated  at  the  time  of  the  accident,  a  presumption  of 
neo-lio-ence  would  properly  arise.     But  the  fact  from  which 
such  inference  is  to  be  drawn  must  first  be  established.     It 
will  not  do  to  presume  that  he  was  in  the  condition  referred 
to  from  some  remote  fact  in  no  way  connected  with  the 
case,  and  upon  this  presumption  base  the  additional  pre- 
sumption of  his  negligence.      This  would  be  to  found  a 
presumption  upon  a  presumption  which  is  never  allowed. 
A  presumption  should  always  be  based  upon  a  fact,  and 
should  be  a  reasonable  and  natural  deduction  from  such 
fact.     The  true  rule  was  correctly  stated  by  Mr.  Justice 
Thompson  in  Douglass  v.  MitcheWs  Executors:'^   *  That  as 
proof  of  a  fact,  the  law  permits  inferences  from  other  facts, 
but  does  not  allow  presumptions  of  fact  from  presumptions. 
A  fact  being  established,  other  facts  may  be,  and  are  often 
ascertained  by  just  inferences.     Not  so  with  a  mere  pre- 
sumption of  a  fact ;  no  presumption  can  with  safety  be 
drawn  from  a  presumption  ;  there  being  no  fixed  or  ascer- 
tained  fact   from  which   an  inference   of   fact   might  be 
drawn,  none  is   drawn.'     What  has  been  said  applies  to  the 
charge  of  the  court  embraced  in  the  fourth  assignment,  as 
well  as  to  the  offers  of  evidence.     There  was  no  evidence 
that  the  driver  of  car  No.  127  was  in  any  way  rendered 
incompetent  to  perform  his  duties  in  a  proper  and  careful 
manner  by  reason  of  the  severity  of  his  labors  or  the  loss 
of  rest  and  sleep.     In  the  absence  of   such  evidence  we 
have  but  a  mere  presumption,  and  upon  this  it  was  not 
competent  to  construct  the  further  presumption  of  his  ueg- 
liofcnce." 

In  case  VI.  it  was  said  :  "  It  remains  to  be  seen  whether 
the  plaintiff  in  this  case  was  in  fact  present  at  the  time  the 
slave  in  suit  was  set  up  and  sold :   for  until  he  is  proven 


1  11  Casey,  443. 


RULE    118.]       GENERAL   RULES    AS   TO   PRESCMPTIOXS.  575 

positively  to  have  been  present  at  the  time  of  the  sale  no 
presumption  of  fraud  arises  wliich  could  affect  him  even  in 
a  court  of  equity.     It  is  a  rule  of  evidence  which  lies  at  the 
foundation  of  all  presumptive  evidence  or  deduction  from 
facts  that  the  facts  themselves  from  which  these  presump- 
tions arise  must  be  clearly  and  satisfactorily  proven.     For, 
if  such  were  not  the  case,  it  would  be  but  raising  presump- 
tion upon  presumption,  whereas  the  very  existence  of  pre- 
sumption depends  upon  their  usual  and  necessary  connection 
with  known  facts.     It  is  by  the  application  of  this  rule  that 
a  tliird  person  who  is  present  when  property  to  which  he  has 
claim,  is  offered  for  sale,  and  Avho  stands  by  in  silence  and 
suffers  an  innocent  purchaser  to  pay  his  money  for  it,  is 
chargeable  with  fraud.     When  it  is  clearly  proven  that  he 
was  present  at  the  time  of  the  sale,  and  so  situated  that  ho 
must  have  been  advised  of  the  fact  that  his  property  was 
about  being  sold  and  he  remains  silent,  a  presumption  of 
intention  to  defraud  the  purchaser  arises  and  attaches  to 
his  conduct.     But  then  in  order  to  raise  this  presumption, 
it  must  be  first  positively  proven  that  he  was  present  at  the 
very  time  the  sale  of  that  particular  property  took  place. 
When  these  rules  are  applied  to  the  evidence  in  this  case  it 
will  be  found  that  there  is  no  positive  proof  that  the  plain- 
tiff was  present  when  this  particular  slave  was  sold.     Most 
of  the  witnesses  have  no  positive  recollection  that  he  was 
there  at  any  time,  but  are  of  the  impression  that  he  was. 
One  witness  only,  says  he  was  there  certainly.     That  wit- 
ness  says:   *  I  do  not  know  whether  plaintiff  was  present 
when  the  negro  sued  for  was  sold  or  not,  but  I  saw  him 
when  the  sheriff  was  selling,  some  time  during  the  progress 
of  the  sale  of   the  negroes  under  execution  against  my 
father.     They   were   some  time  selling  the  whole  lot  of 
negroes, —  some    nine   or  ten   in   number.'       Therefore, 
under  no  state  of  the  case  can  the  plaintiff  be  aifected  by 
this  principle,  as  the  proof  fails  to  establish  the  fact  of  his 
presence  at  the  time  of  the  sale  of  the  boy  in  suit." 


57G  rKESUMPTIYE   EVIDENCE.  [RULE    120. 

KUIiE  119. — A  presumption  can  not  conti-adict  facts  or 
overcome  facts  proved. 

<'They  have  no  place  for  consideration  Tvhen  the  evi- 
dence is  disclosed  or  the  averment  is  made.  When,  there- 
fore, the  record  states  the  evidence  or  makes  an  averment 
vrith  reference  to  a  jurisdictional  fact,  it  will  be  understood 
to  speak  the  truth  on  that  point,  and  it  will  not  be  pre- 
sumed that  there  was  other  or  different  evidence  respecting 
the  facts  or  that  the  fact  was  otherwise  than  as  averred. 
If,  for  example,  it  appears  from  the  return  of  the  officer  or 
the  proof  of  service  contained  in  the  record  that  the  sum- 
mons was  served  at  a  particular  place,  and  there  is  no  aver- 
ment of  any  other  service,  it  will  not  be  presumed  that 
service  was  also  made  at  another  and  different  place  ;  or  if 
it  appears  in  like  manner  that  the  service  was  made  upon  a 
person  other  than  the  defendant,  it  will  not  be  presumed, 
in  the  silence  of  the  record,  that  it  was  made  upon  the 
defendant  also.  Were  not  this  so,  it  would  never  be  pos- 
sible to  attack  collaterally  the  judgment  of  a  superior 
court,  although  a  want  of  jurisdiction  might  be  apparent 
upon  its  face ;  the  answer  to  the  attack  would  always  be, 
that  notwithstanding  the  evidence  or  the  averment,  the 
necessary  facts  to  support  the  judgment  are  presumed."^ 

RULE  120.  —  A  rebuttable  presumption  of  law  being 
contested  by  proof  of  facts  showing  otlierwise,  wbicli 
are  denied,  the  presumption  loses  its  value,  unless  the 
evidence  is  equal  on  both  sides,  in  which  case  it 
should  turn  the  scale. 

In  Graves  Y,  ColweW^  it  was  said:  *'  The  plaintiff  made 
out  a  prima  facie  case  by  availing  himself  of  the  presump- 

1  Galpin  v.  Page,  18  Wall.  364  (1873).  Presumptions  of  fact  are  not  binding  on  a 
jury.  Hamilton  v.  People,  29  Mich.  193  (1874).  Presumptions  stand  only  till  they  are 
overcome  by  facts.  Whitaker  v.  Morrison,  44  Am.  Dec.  627  (1S4G) ;  Van  Burenr- 
Cockburn,  14  Barb.  122  (1852).  "  The  evidence  to  support  a  natural  presumption  of 
a  fact  must  be  such  as  to  lead  the  mind  to  a  conscientious  belief  of  its  existence 
beyond  a  reasonable  doubt."    Uuntv.  Hunt,  3  Mete.  175;  37  Am.  Dec.  130  (1841). 

2  90111.  615(1878). 


EULE    120.]       GENEKAL    RULES   AS   TO   PKESUMPTIOXS.  577 

tion  of  law  that  the  father  and  not  the  son  was  intended  hy 
the  deed  from  French.^  It  then  devolved  on  defendants  to 
introduce  evidence  safEcient  to  rebut  this  legal  presump- 
tion, and,  as  they  did  so,  they  would  have  been  entitled  to 
a  verdict  if  the  case  had  stood  still  there.  The  case  of  the 
defendants,  as  disclosed  by  their  testimony,  considered  in 
and  of  itself,  rebutted  the  legal  presumption,  and  thereby 
the  onus  was  shifted  back  to  plaintiff,  and  he  was  bound  to 
produce  proofs  sufficient  to  overcome,  or  at  least  equal  in 
probative  force,  the  case  of  the  defendant.  Plaintiff  did 
introduce  certain  rebutting  evidence,  and,  he  having  done 
so,  the  verdict  of  the  jury  should  have  been  in  conformity 
with  the  preponderance  of  evidence  on  the  whole  case.  If 
the  testimony  of  defendants  was  of  greater  probative  force 
than  the  rebutting  evidence  of  plaintiff  added  to  the  proba- 
tive value  of  the  legal  presumption,  then  the  verdict  should 
have  been  for  them.  If  the  evidence  in  the  concrete  case, 
including  the  evidential  weight  of  the  presumption  of  law, 
was  in  equilibrium,  then  the  plaintiff  might  still  have 
availed  himself  of  the  presumption  of  law,  as  an  arbi- 
trary rule  of  law,  and  been  entitled  to  recover.  It  has 
been  said  that  the  presumptions  of  law  derive  their 
force  from  jurisprudence  and  not  from  logic,  and  that 
such  presumptions  are  arbitrary  in  their  application.  This 
is  true  of  irrebuttable  presumptions,  and,  primarily,  of 
such  as  are  rebuttable.  It  is  true  of  the  latter  until  the 
presumption  has  been  overcome  by  proofs  and  the  bur- 
den shifted  ;  but  when  this  has  been  done,  then  the  con- 
flicting evidence  on  the  question  of  fact  is  to  be  Aveighed 
and  the  verdict  rendered,  in  civil  cases,  in  favor  of  the 
party  whose  proofs  have  most  weight,  and  in  this  latter 
process  the  presumption  of  law  loses  all  that  it  had  of  mere 
arbitrary  power,  and  must  necessarily  be  regarded  only 
from  the  standpoint  of  logic  and  reason,  and  valued  and 


1  Lcpiot  t'.  Browne,  6  Mod.  Rep.  IDS;  Kincntd  v.  Ilowe,  10  Mass.  203;  Padgett  v. 
Lawi'cnce,  10  Paige.  170;  Stale  r.  Vittum.O  X.  H.  519;  2  Whartou's  Ev.,  sec.  1273. 

37 


578  PEESUMrTivE  EyIDE^'CE.  [rule  120. 

given  effect  only  as  it  has  evidential  character.  Primarily, 
the  rebuttable  legal  presumption  affects  only  the  burden  of 
proof,  but  if  that  burden  is  shifted  back  upon  the  party 
from  whom  it  first  lifted  it,  then  the  presumption  is  of 
value  only  as  it  has  probative  force,  except  it  be  that  on 
the  entire  case  the  evidence  is  equally  balanced,  in  which 
event  the  arbitrary  power  of  the  presumption  of  law  would 
settle  the  issue  in  favor  of  the  proponent  of  the  presump- 
tion. Regarded  in  its  evidential  aspect,  a  given  presump- 
tion of  law  may  have  either  more  or  less  of  jDrobative  value, 
dependent  upon  the  character  of  the  presumption  itself, 
and  upon  the  circumstances  of  the  particular  case  in  which 
the  issue  may  arise.  Some  legal  presumptions  are  more 
probable  and  inherently  stronger  than  others.  So,  also, 
differing  circumstances  may  give  differing  degrees  of  prob- 
ability to  one  and  the  same  legal  presumption.  A  prom- 
issory note  is  made  to  A.  B.,  and  it  turns  out  there  are  two 
persons  of  that  name  in  the  community,  —  a  father  and  son. 
The  question  of  identity  arises,  and  primarily,  as  fixing  the 
burden  of  proof,  the  law  says  it  is  presumed  the  father  was 
intended.  Thus  far  the  presumption  is  judicial  and  arbi- 
trary. An  issue  is  formed,  and  the  son  establishes,  'prima 
facie,  that  he  and  not  the  father  was  indicated,  and  the 
father  then  offers  rebutting  evidence.  Now  this  issue,  thus 
made,  is  to  be  determined  by  the  weight  of  evidence,  and 
upon  the  whole  case,  and  in  determining  such  issue  the  pre- 
sumption has  lost  (unless  there  be  an  equilibrium)  its 
merely  arbitrary  character,  and  is  entitled  only  to  its 
loo^ical  value.  If  A.  B.,  the  son,  was  at  the  date  of  the 
transaction  involved  in  the  controversy,  a  mere  infant  of 
tender  years,  wholly  unacquainted  with  business  affairs,  and 
the  father  was  engaged  in  the  active  pursuits  of  life,  the 
probability  that  the  father  was  meant  is  very  great,  and  the 
legal  presumption  would  have  much  more  of  probative 
force  than  it  would  have  in  a  case  where  the  son  was  a 
mature  man  and  in  active  business,  and  the  father  aged  and 
retired  from  business," 


KULE    121.]       GENERAL   RULES   AS    TO   TKESUMPTIONS.  579 

RULE  121.  —  And  a  presumption  is  neither  continuous 
(A)  nor  retroactive  (B). 

Illustrations. 


I.  A.  brings  an  action  against  B.  for  enticing  his  minor  son  to  enlist 
in  tJie  array.  Tlie  question  is  as  to  tlie  measure  of  damages,  wiietlier  A. 
can  recover  for  the  loss  of  service  until  tlie  end  of  his  son's  term  (i.e., 
three  years  or  the  end  of  the  war,  which  at  the  time  is  raging),  or  only 
to  the  time  of  the  trial.  Held,  the  latter,  as  the  law  can  not  presume 
that  the  war  will  coutiuue  to  exist  for  three  years  or  for  any  period.^ 

II.  In  a  suit  for  divorce  it  is  shown  that  certain  letters  were  written 
by  the  wife  to  a  witness,  three  of  them  containing  confessions  of  adul- 
tery.  These  letters  were  destroyed,  while  two  subsequently  received 
were  handed  to  the  custody  of  a  third  person.  Held,  that  there  was  no 
presumption  that  these  last  letters  were  written  on  the  same  subject  or 
contained  similar  confessions. 2 

«'  The  enlistment,"  it  was  said  in  case  I.,  **  was  to  end 
witli  the  war,  and  the  hiw  will  not  presume  in  such  a  case 
that  the  war  will  continue  three  years.  The  law  presumes 
that  a  fact  continuous  in  its  character  still  continues  to 
exist  until  a  change  is  shown,  and  so  a  state  of  war  proved 
to  exist  three  years  ago  is  presumed  in  law  to  be  still  exist- 
ing, unless  the  contrary  be  shown,  but  the  law  indulges  no 
presumption  at  the  present  time  that  it  will  continue  three 
years  longer.  On  the  contrary  war  is  not  the  normal,  but 
an  exceptional  state  of  society,  and  is  generally  regarded 
as  a  thing  not  to  be  desired  either  by  individuals  or  nations. 
Peace  is  desirable  and  not  war,  and  the  presumption  is  that 
men  and  nations  will  do  that  which  is  for  their  interest*  and 
act  with  reference  to  them.  The  law,  however,  will  not 
indulge  in  any  presumption  in  regard  to  a  future  condition 
of  war  or  peace.  God  alone  knows  what  the  future  has 
in  store  for  nations,  and  finite  courts,  whose  visions  can  not 
penetrate  the  future,  should  not  speculate  as  to  its  proba- 
bilities, much  less  attempt  to  solve  them  and  make  them  the 

1  Covert  f.  Gray,  34  Hoi*.  Pr.  450  (1860). 

2  Strong  V.  Strong,  1  Abb.  Pr.  (N.  8.)  238  (1665.) 


580  PEESU3IPTIVE   EVIDENCE.  [eULE    121. 

basis  of  their  jiulgment.  The  rule  is  reasonable  which  pre- 
sumes the  continuance  of  an  existing  fact  at  the  time  of 
the  trial,  for  the  other  party  can  overthrow  it  by  proof  if 
it  be  not  so  ;  but  when  it  presumes  a  future  continuance  the 
party  has  no  ability  to  unfold  the  future  and  give  an  answer 
by  his  proof." 

In  case  II.  it  was  said :  * '  It  was  presumed  that  such  let- 
ters, being  part  of  a  series  as  they  are  called,  must  have 
related  to  the  same  subject.  I  know  of  no  principle  upon 
which  every  friendly  letter  between  the  same  parties  is  to 
be  presumed  in  law  to  continue  to  advert  to  some  one  sub- 
ject, or  that  confessions  of  guilt  on  that  subject  may  be 
supposed  to  be  reiterated  or  protestations  of  innocence 
inserted  in  every  one ;  every  thing  is  some  time  or  other 
brought  to  an  end,  and  every  subject  is  sometimes  absent 
from  our  thoughts  or  writino;s.  Even  a  friend  does  not 
always  continue  to  be  confessor,  and  there  is  no  experience 
of  mankind  which  warrants  the  conclusion  adopted  in  this 
case." 

B. 

I.  A  deed  is  signed  in  1854  by  Henrietta  C,  her  maiden  name.  There 
is  evidence  that  in  18G0  she  was  known  as  Mrs.  D.  There  is  no  presump- 
tion that  she  was  married  in  1854.1 

II.  Harriet  G.  executes  a  deed  in  1854.  The  question  is  whether  stib 
was  married  at  the  time.  There  is  evidence  that  she  was  tlien  over 
twenty-flve  years  old.  This  raises  no  presumption  that  she  was  then 
married. 2 

III.  Depositions  out  of  the  State  are  allowed  to  be  taken  before  "  any 
judge  or  justice  of  the  peace."  A  commission  is  issued  to  Texas;  depo- 
sitions are  taken  before  one  B.  on  June  6,  1848;  and  it  is  officially  certi- 
fied on  June  20th  that  B.  is  a  justice  of  the  peace.  There  is  no  presump- 
tion from  this  that  B.  held  that  office  on  June  5th.' 

IV.  A.  made  a  contract  in  1800.  In  18G4  he  was  insane.  There  is 
no  presumption  that  he  was  insane  in  18G0.* 


1  Erskine  v.  Davis,  25  Ul.  251  (1861). 

*  Erskine  v.  Uavis,  25  111.  251  (18G1). 

»  Carieh  v.  Lytle,  4  La.  .\nn.  .'557  (1849). 

*  Taylor  v.  CressweU,  45  Md.  422. 


Rule  146.]     general  rules  as  to  rRESUMPrioxs.       581 

V.  M.  committed  a  burglary  in  1880  in  the  house  of  J.  In  1881,  M. 
was  tried  and  it  appeared  on  the  trial  that  J.  was  married.  This  raises 
no  presumption  that  J.  was  married  at  the  time  of  the  burglary.^ 

"  The  presumption  of  coverture,"  it  was  said  in  case  I., 
*'  is  prospective  not  retrospective.  If  we  siiall  presume 
for  the  purpose  of  avoiding  the  deed  executed  by  her  in 
her  maiden  name,  that  she  was  married  six  years  before  we 
have  any  evidence  that  she  was  married  at  all,  we  might 
with  the  same  propriety  presume  that  she  had  been  married 
sixteen  years.     Such  is  not  the  law." 

In  case  III.  it  was  said :  ' '  When  the  existence  of  a  subject- 
matter  or  relation  has  been  established,  its  continuance 
may  be  presumed.  But  here  we  are  called  upon  to  pre- 
sume from  the  fact  that  a  person  was  qualified  to  act  as  a 
justice  at  a  particular  date,  that  he  was  qualified  so  to  act 
at  a  period  anterior  to  that  date.  Such  a  presumption  is 
not  supported  by  reason  or  authority."  In  maritime  law, 
a  different  rule  seems  to  prevail.  Thus  a  ship  soon  after 
leaving  port  becomes  so  leaky  and  disabled  as  to  be  unable 
to  proceed.  There  is  no  evidence  that  she  encountered  any 
great  storm  or  peril  of  the  sea.  The  presumption  is  that 
she  was  unseaworthy  when  she  sailed."  ^ 

In  case  V.  it  was  said:  *'  When  the  existence  of  a  per- 
sonal relation  or  a  state  of  things  continuous  in  its  nature 
is  once  established  by  proof,  the  law  presumes  that  such 
status  continues  to  exist  as  before,  until  the  contrary  is 
proved,  or  until  a  different  presumption  is  raised  from  the 
nature  of  the  subject  in  question.  But  this  presumption 
can  not  be  permitted  to  operate  retrospectively,  so  as  to 
infer  the  prior  existence  of  coverture  or  other  like  relation- 
ship from  proof  of  its  present  existence.  It  may  l)e  that 
the  party  contracted  the  relationship  within  a  few  days  be- 
fore the  trial." 


Murdoch  v.  State.  63  Ala.  567  (ISSl). 
>  Wright  V  Orient  Ina.  Co.,  6  Bosw.  270  (1860) ;  1  Amonld  on  Ins.  6S6,  sec.  255. 


582  PRESUMPTIVE   EVIDENCE.  [rULE    122. 

litXE  122.  —  In  tlic  case  of  conflicting  presumptions  tbe 
presumption  of  payment  is  stronger  than,  and  will 
prevail  against,  the  presumption  of  continuance  (A) ; 
the  presumption  of  innocence  is  stronger  than,  and 
will  prevail  against,  the  presumption  of  payment  (B), 
of  the  continuance  of  life  (C),  of  the  continuance  of 
things  generally  (D),  of  marriage  (E),  and  of  chastity 
(F)  ;  the  presumption  of  knowledge  of  the  law  is 
stronger  than,  and  will  prevail  over,  the  presumption 
of  innocence  (G),  and  the  presumption  of  sanity  is 
stronger  than,  and  will  prevail  over,  the  presumption, 
of  innocence  (H). 

Illustrations. 

A. 

I.  See  Illustration  (B.) 

B. 

I.  An  action  is  brought  on  an  administrator's  bond  to  compel  him  to 
account  for  and  pay  over  the  amount  of  a  private  debt  due  from  him  to 
the  intestate.  Twenty-four  years  have  elapsed  since  the  bond  was  given. 
There  is  no  proof  of  a  decree  of  distribution  ordering  him  to  pay  to  the 
heirs.  Therefore  the  presumption  of  payment  and  the  presumption  of 
innocence  (arising  from  the  fact  that  he  would  have  violated  his  duty  in 
paying  without  a  decree)  conflict,  and  the  latter  must  prevail. ^ 

In  case  I.  it  was  said:  '•  It  has  been  farther  contended 
that  the  facts  furnished  a  legal  ground  on  which  the  jury 
might  have  presumed  that  the  defendant  had  paid  or  ac- 
counted to  the  heirs  of  the  intestate  for  the  amount  of  the 
notes  without  the  formality  of  any  proceeding  in  the  pro- 
bate court  by  way  of  a  settled  account  and  a  decree 
thereon,  and  that  the  judge  should  have  left  this  question 
to  the  jury.  The  obvious  reply  to  this  objection  and  argu- 
ment, is  that  the  law  does  not  presume  that  an  administrator 
does  wrong;  it  does  not  presume  that  the  defendant  did 

1  Potter  V.  Titcomb,  7  Me.  303  (1831). 


RULE    122.]       GENERAL   IIULES   AS   TO   rRESL^IPTIONS .  583 

what  by  law  he  had  no  right  to  do,  that  is  that  he  had  made 
an  unautiiorized  payment  to  the  heirs  under  the  circum- 
stances mentioned.  He  was  bound  to  account  to  the  judge 
of.  probate,  and  ho  had  no  right  to  pay  the  heirs  but  under 
decree.  To  presume  it  would  be  to  presume  against  law 
and  right.  Wo  do  not  mean  to  say  that  had  there  been 
proof  that  the  amount  of  the  notes  had  been  actually 
apportioned,  and  paid  to  the  several  heirs,  though  without 
a  decree  of  the  Probate  Court,  it  might  not,  in  a  hearing  in 
chancery,  be  a  bar  to  an  execution  for  anything  beyond 
nominal  damages.  It  would  be  as  strange  to  sanction  the 
presumption  where  mentioned  as  that  which  was  relied  upon 
in  another  part  of  the  argument  to  prove  that  the  intestate 
had  forgiven  the  debt  due  on  the  notes.  Wrongs  and  gifts 
are  not  to  bo  presumed  ;  they  must  be  proved." 

♦'Nothing  can  be  clearer  than  this/'  says  Mr.  Justice 
Heath  in  an  old  case,^  ♦*  a  presumption  may  be  rebutted  by 
a  contrary  and  stronger  presumption." 

C. 

I.  Mary  B.  married  W.,  who  afterwards  enlisted  and  went  on  a  foreign 
service  aud  was  never  heard  of  afterwards ;  twelve  months  after  his  de- 
parture she  married  B.  Held,  that  the  issue  of  B.  would  be  presumed 
legitimate. 2 

II.  Title  was  claimed  through  A.  aud  B.,  his  wife;  it  was  proved  that 
B.  had  been  married  to  C,  who  was  dead,  aud  that  she  had  had  three 
husbands  before  she  married  A.;  the  presumption  was  that  these  hus- 
bands were  dead  before  she  married  A.» 

In  case  I.  the  conflicting  presumptions  were  the  presump- 
tion of  innocence  aud  the  presumption  of  the  continuance 
of  life.     "  If,"  said  the  court.  ♦'  W.  was  alive  at  the  time 

1  Jayno  r.  Price,  6  Taunt.  326  (181i). 

2  King  f.  InhabiCints  of  Gloucestershire,  2  Barn.  A  Aid.  .?S6  (1819) ;  Lockhartr. 
White,  13  Tex.  lOi  (1S56)  ;  Sharp  r.  Johnson,  2-2  Ark.  7'.»  (IfSGO) ;  Grccnsborough  p. 
Underbill,  12  Vt.  604  (1939);  Cameron  r.  Stato,  14  Ala.  54(5;  48  Am.  Dec.  Ill  (K'^48) ; 
Chapman  v.  Cooper,  5  Rich.  (L.)  452  (1S52)  ;  Tales  v.  Houston.  3  Tex.  442  (1S4S) ; 
People  r.  Fcilen,  53  Cal.  218(1831);  Hull  v.  State,  7  Tex.  App.  693  (1830) ;  Murray 
V.  Murray,  6  Ore.  18  (1S76). 

8  B.eiden  v.  Faff,  12  S.  &  R.  (Pa.)  430   (1825). 


584  PEESU3IPTIVE  EVIDE^XE.  [rule  122. 

of  the  second  marriage,  it  was  illegal  and  she  was  guilty  of 
bigamy.  If  she  had  been  indicted  for  bigamy,  it  would 
clearly  not  be  suiEcient.  In  that  case,  W.  must  have  been 
proved  to  have  been  alive  at  the  time  of  the  second  mar- 
riafj-e.  It  is  contended  that  his  death  ou^ht  to  have  been 
proved,  but  the  answer  is  that  the  presumption  of  law  is 
that  he  was  not  alive  when  the  consequence  of  his  being  so 
is  that  another  person  has  committed  a  criminal  act,"  ^ 

In  case  II.  it  was  said:  "In  an  old  transaction  like  this, 
the  fact  of  a  second  marriage  is  of  itself  some  evidence  of 
the  death  of  the  former  husband.  There  are  sometimes 
cases  where  it  is  unavoidably  necessary  to  decide  on  the 
existence  of  facts  without  a  particle  of  evidence  on  either 
side,  and  if  a  decision  in  a  particular  way  would  implicate  a 
party  to  a  transaction  in  the  commission  of  a  crime  or  any 
offense  against  good  morals,  it  ought  to  be  avoided,  for  the 
law  will  not  gratuitously  impute  crime  to  any  one,  the  pre- 
sumption being  in  favor  of  innocence  till  guilt  appear." 

In  a  Massachusetts  case  it  was  said  :  *'  The  presumption 
of  the  wife's  innocence  in  marrying  again  might  well  over- 
come any  presumption  that  a  man  not  heard  from  for  four 
years  before  the  second  marriage  or  for  sixteen  years  after- 


1  The  case  which  is  often  cited  in  connection  with  King  «.  Inhabitants  ol  Glou- 
cesteriihire,  is  King  v.  Inhabitants  of  Harborne,  2  Ad.  &.  E.  540  (1835).  There  it 
appeared  that  one  Ann  Smith  had,  on  April  11, 1831,  been  married  to  one  Henry 
Smith,  who  deserted  her.  Smith  had  been  previously  married  in  October,  1821,  to 
another  female,  with  whom  he  lived  until  1825,  when  he  left  her.  But  several  letters 
had  been  received  from  her  from  Van  Dieman's  Land,  one.  of  which  bore  date  only 
twenty-five  days  previous  to  the  second  marriage.  The  court  held  that  the  pre- 
Bumption  was  that  the  first  wife  was  living  at  the  time  of  the  second  marriage.  The 
decision  in  this  case  is  evidently  based  on  the  very  short  time  which  transpired 
between  the  time  when  the  first  Avife  was  shown  to  be  alive  and  the  date  of  the 
eecond  marriage.  And  see  Lapsley  v.  Grierson,  1 II.  L.  Cas.  500  (1818).  In  Yates  a. 
Houston,  3  Tex.  433  (1848),  where  four  years  had  elapsed  since  the  former  wife  had 
been  heard  from,  it  was  held  that  her  death  would  be  presumed  to  validate  a  subse- 
quent marriage.  And  see  Lockhart  v.  White,  18  Tex.  102  (1856).  In  Wilkic  v.  Collins, 
48Mi68.  496  (1873),  a  husband  left  his  home  in  Mississippi  on  October  30, 1850,  and 
went  to  Louisiana  on  business,  where  he  was  last  heard  from  by  letter  to  his  wife, 
Kovember  30,  1859,  announcing  that  he  was  then  sick  in  bed,  and  would  return  aa 
Boon  as  he  was  able  to  travel.  He  was  of  habitual  delicate  health,  and  his  domestic 
relativ^ne  had  always  been  most  agreeable.  It  was  the  belief  of  his  family  that  ho 
was  dead,  and  on  December  22, 1861,  his  wife  married  again.  It  was  held  that  the 
husband  would  be  presumed  to  haye  been  dead  at  that  time.  And  see  Chapman  v. 
Cooper,  5  Kich.  (S.  C.)  L.  453  (1852). 


RULE    122.]       GENERAL   RULES   AS   TO   PRESUMPTIONS.  585 

wards  was  alive  and  her  lawful  huaband  when  she  married 
the  second  time."  ^ 


D. 

I.  A.  and  B.,  as  husband  and  wife,  sue  C.  for  slander;  they  prove  their 
marriage,  but  C.  proves  dccluratious  of  the  wife  tliat  she  had  been  mar- 
ried in  Germany  to  another  man.  It  will  be  presumed  that  the  previous 
marriage  has  been  dissolved  by  death  or  divorce. ^ 

II.  A.  threatens  to  kill  B.;  some  time  after,  B.  kills  A.  There  is  no 
presumption  that  A.'s  iuteution  continued  to  that  time.* 

III.  A.  was  indicted  for  illegally  selling  liquor;  it  was  proved  that 
it  was  sold,  in  his  absence,  by  his  clerk.  The  fact  that  the  clerk  had 
previously  made  similar  sales,  which  A.  had  approved,  does  not  raise  the 
presumption  that  the  last  sale  was  with  his  consent.* 

IV.  A  bankrupt  in  1837,  makes  a  scheduled  return  of  his  property.  It 
is  afterward  discovered  that  in  1835  he  owned  certain  property  which 
was  not  included  in  the  schedule.  There  is  no  presumption  that  he 
owned  this  property  in  1837,  for  the  presumption  is  that  he  did  not  com- 
mit a  fraud. ^ 

In  case  I.  it  was  said :  **  There  was  no  presumption  that  a 
marriage  Avhich  was  proved  to  have  existed  at  one  time  in 
Germany  continued  to  exist  here  after  positive  proof  of  a 
second  marriage  de  facto  here.  The  presumption  of  law  is 
that  the  conduct  of  parties  is  in  conformity  to  law  until  the 
contrary  is  shown.  That  a  fact  continuous  in  its  nature 
will  be  presumed  to  continue  after  its  existence  is  once 
shown  is  a  presumption  which  ought  not  to  be  allowed  to 
overthrow  another  presumption,  of  equal,  if  not  greater 
force,  in  favor  of  innocence.  *  *  *  There  was  not 
any  evidence  that  the  first  husband  of  Mrs.  K.  was  still  liv- 
ing, but  if  this  had  been  established  we  think  she  was  still 
entitled  to  the  benetitof  the  favorable  presumption  that  the 
first  marriage  had  been  dissolved  by  a  divorce." 


1  Kelley  r.  Drew,  19  AHcn,  107  (1866). 
«  Klein  V.  Lamlman,  29  Mo.  259  (1860). 
»  Stiito  V.  Brown,  G4  Mo.  r.iiT  (1S77). 
<  Patterson  r.  S  ate,  '21  Al.i.  571  (1852). 
6  PoweU  V.  Kuox,  16  Ala.  Cai  (1S49). 


586  PEESU3IPTIVE   EYIDEXCE.  [rULE    122. 

In  case  III.  it  was  said  :  "  "We  have  no  right  to  conclude 
that  because  he  has  sanctioned  previous  violations  of  the 
law  he  will  continue  to  do  so  ;  on  the  contrary,  as  every 
party  is  to  be  presumed  innocent  until  his  guilt  is  made 
manifest,  we  should  presume  that  he  repented  his  former 
transgression,  and  therefore  did  not  assent  to  the  subse- 
quent violation." 

Where  the  acts  grow  out  of  the  illicit  relations  of  the 
sexes,  this  rule  does  not  appear  to  hold  good,  as  the  fol- 
lowing illustrations  will  show :  — 

Illustrations. 

I.  A.  and  B.  are  indicted  for  living  together  in  adultery;  the  jury  are 
Instructed  that  where  criminal  intercourse  is  once  proved  it  will  be  pre- 
sumed, if  the  parties  live  under  the  same  roof,  to  still  continue.  Held, 
correct  .1 

II.  B.  and  C.  live  together,  the  latter  as  B.'s  mistress;  B.  diej.  That 
a  marriage  took  place  between  them  before  his  death  will  not  be  pre- 
sumed.^ 

It  has  been  said  that  while  much  will  be  presumed  in 
favor  of  a  marriage,  after  the  removal  of  a  barrier  between 
parties  who  have  been  prevented  from  contracting  it  by  a 
legal  obstacle,  no  such  presumption  will  arise  where  the  par- 
ties were  originally  at  liberty  to  form  a  legal  or  illegal 
union  as  they  perf erred.  In  such  a  case,  having  originally 
elected  the  criminal  in  preference  to  the  lawful  relation- 
ship, they  must  bo  presumed  to  have  continued  therein 
until  some  change  of  intention  and  wishes  is  affirmatively 
shown.^  This  distinction  renders  such  cases  as  those  in  the 
above  illustration  completely  in  harmony  with  cases  like 
Wilkinson  Y.Po.yne,  and  others,  noted  under  previous  rules. 
In  Wilkinson  v.  Payne,'^  an  infant  contracted  a  void  mar- 
riage and  lived  with  his  wife  until  her  death,  which  occurred 


1  Carotti  v.  State,  42  Miss.  334  (1868). 

2  Floyd  V.  Calvert,  .5?,  Miss.  46  (1876). 
«  Floyd  V.  Calvert,  53  Miss.  46  (1876). 
*  4  T.  E.  468. 


RULE    122.]       GENERAL   RULES   AS    TO    PRESL^ITTIONS.  587 

only  three  weeks  after  he  attained  a  legal  age  to  marry, 
and  it  appeared  that  during  tlie  whole  of  that  time  she  was 
on  her  death-bed.  It  was  nevertheless  held  that  a  marriage 
would  be  presumed.  The  bar  being  removed,  the  presump- 
tion was  in  favor  of  innocence. 


E. 

I.  A  presumption  of  marriage  arises  from  cohabitation;  M.  and  Y. 
were  proved  to  have  lived  tojictlier  aud  cohabited;  Y.  afterwards  mar- 
ried S.  The  presumption  that  Y.  did  not  commit  bigamy  prevails  over 
he  presumption  that  M.  and  Y.  were  married. ^ 

II.  In  1840,  marriages  between  whites  and  negro  slaves  are  prohibited 
under  penalty  of  fine  and  imprisonment;  it  is  proved  that  a  negro  slave 
and  a  white  woman  lived  and  cohabited  together.  The  presumption  is 
that  the  relation  was  that  of  concubinage  and  not  of  marriage.^ 

F. 

I.  W.  was  indicted  for  the  seduction  of  E.  under  a  statute  punishing 
the  seduction  of  "  any  unmarried  female  of  previous  chaste  character." 
The  previous  chaste  character  of  E.  will  not  be  presumed.^ 

*'  It  is  true,"  it  was  said  in  case  I.,  "  that  ordinarily  the 
reasonable  and  just  presumption  is  in  favor  of  female 
chastity.  So  is  likewise  the  presumption  in  favor  of  moral 
honesty.  Happily  these  presumptions  are  not  only  justified 
in  all  civilized  nations,  but  nobly  illustrated  as  well  by  the 
institutions  of  social  life  as  by  the  laws  enacted  by  govern- 
ment. Social  intercourse  is  based  upon  the  presumption  of 
virtue,  and  society  is  obliged  so  far  to  conform  to  this  law 

1  Clayton  r.  Wardell,  4  X.  T.  2?.0  (1S50) ;  Case  v.  Case,  17  Gal.  593  (1S61). 

2  Armstrong r.  Hodges,  3  B.  Mon.  (Ky.)  70  (1S41). 

8  West  V.  State,  1  Wis.  209  (1853).  But  see  State  v.  Well?,  48  Iowa,  671  (1S7S).  In 
Slocum  f.  People,  90  111.281  (1878),  the  prosecution  was  under  a  statute  punishing 
the  enticing  away  from  home  for  the  purpose  of  prostitution,  of  any  unmarried 
woman  of  chaste  life  and  conversation.  In  deciding  the  case  the  Supreme  Court 
eaid:  "  The  presumption  of  law  is  that  lior  previous  life  and  conversation  were 
chaste,  and  the  onus  was  upon  the  defendant  to  show  otherwise."  But  the  case 
ehows  that  she  was  only  eighteen  years  old,  that  previous  to  her  seduction  she  had 
resided  with  her  parents,  went  to  scliool  and  church  and  mingled  with  good  society, 
and  she  testified  on  the  trial  that  she  never  had  intercourse  with  any  man  but  the 
defendant.  This  expression  of  tho  court  was  therefore  unnecessary,  as  there  was 
proof  enough  to  robut  the  presumption. 


588  PRESOIPTIVE   EVIDEXCE.  [rULE    122. 

of  its  existence  that  even  in  its  most  corrupt  state  it  is  com- 
pelled to  put  on,  at  least,  the  form  and  semblance  of  virtue 
though  its  spirit  may  have  departed.     In  every  case  in  wliich 
the  integrity  of  an  individual  is  attacked  the  presumption 
of  the  law  comes  to  his  aid.     Every  person  charged  with 
crime  is  presumed  innocent  till  he  be  proved  guilty.     Fraud 
is   never  to  be   presumed,  but   must   always   be  proved. 
Every  female  charged  with  an  offense,  the  essence  of  which 
is  unchastity,  is  presumed  to  be  chaste  until  the  contrary 
appears.     But  these  excellent  and  humane  presumptions,  so 
pregnant  with  the  testimony  which  they  bear  to  the  dignity 
and  honor  of  human  nature,  are  always  to  be  used,  in  the 
administration  of  justice,  as  a  weapon  of  defense,  not  of 
assault.     They  are  the  shield  of  the  accused,  not  the  sword 
of  the  prosecutor.     *     *     *     The  previous  chaste  charac- 
ter of  the  female  is  one  of  the  most  essential  elements  of 
the  offense,  made  so  by  the  express  words  of  the  statute  in 
conformity  with  the  suggestions  of  sound  reason.     A  pros- 
titute may  be  the  subject  of  rape  but  not  of  seduction.     It 
is  the  chastity  of  the  female  which  the  statute  is  designed 
to  protect.     The  pre-existence  of  that  chastity  is  the  sine 
qua  noil  to  the  commission  of  the  crime.     That  is  the  sub- 
ject of  legal  guardianship  provided  by  this  section.     It  is  a 
substantive  matter  necessary  to  be  averred  and  proved.     If 
the  prosecutrix  were  to  change  places,  and  were  she  indicted 
for  lascivious  conduct,  then,  indeed,  the  legal  presumption 
would  come  to   her   aid  and  her  chastity  would   be   pre- 
sumed.   But  when  the  State  accuses  one  of  its  citizens  with 
the  violation  of  the  chastity  of  another  of  its  citizens  by 
seduction,  the  law  presumes  the  accused  to  be  innocent  of 
the  entire  offense  until  the  contrary  appears.     The  State 
can  not  be  permitted  to  presume  the  immediate  pre-existence 
of  that  chastity  with  the  destruction  of  which  the  defendant 
is  charo-cd.     One  act  of  illicit  intercourse  affords  no  pre- 
sumption  that  another  has  not  preceded  it.     *     *     *     The 
error  consists  in  the  instruction  which  the  court  gave  the 
jury  to  the  effect  that  the  law  presumed  that  she  was  pre- 


RULE    122.]       GENERAL   RULES   AS    TO   rRESUMTTIONS.  589 

viously  of  a  chaste  character,  independent  of  any  proof 
whatever.  This  is  setting  up  a  presumption  on  the  part  of 
the  State,  the  prosecuting  party,  incompatible  with  the 
presumption  which  the  law  afTords  the  defendant,  and  if  the 
principle  should  prevail  the  presumption  of  the  virtue  of 
one  citizen  might  work  the  condemnation  of  another  in 
whose  favor  the  law  ailbrds  equal,  and  when  charged  with 
crime,  even  stronger  presumption." 

G. 

I.  All  persons  are  presumed  to  know  the  common  and  statute  law, 
and  are  responsible  for  its  violation.'  Ignorance  of  the  law  excuses  no 
one  and  can  not  be  pleaded  as  au  excuse  for  the  commission  of  a  crime. 

H. 

I.  A.  is  charged  with  a  crime;  the  presumption  is  that  A.  was  sane 
when  he  committed  it,  and  if  he  Avishes  to  be  excused  ou  the  ground  ol 
non-responsibility,  he  must  prove  it.^ 

In  case  I.,  if  A.  was  insane  when  he  committed  the  act, 
he  could  not  be  punished,  for  an  insane  person  can  not 
commit  a  crime.  If  the  presumption  of  innocence  were 
general  and  without  exception,  the  presumption  wx)uld  be 
that  A.  was  insane  —  in  other  words  that  the  act  was  not  a 
crime  ;  that  he  was  innocent  because  he  was  non-responsi- 
ble. But  the  presumption  of  sanity  and  the  presumption 
of  innocence  coming  in  conflict,  the  latter  must  give  way 
according  to  the  best-considered  doctrine  on  this  question. 
The  subject  is  an  important  one,  and  has  led  to  much  dis- 
cussion. The  decisions  are  not  harmonious,  and  no  ques- 
tion is  more  debated  at  the  present  time,  when  it  arises  for 
actual  decision,  than  the  question  of  the  burden  of  proof 
of  insanity  in  criminal  cases.  Three  different  views  have 
been  advanced.  The  first  is,  that  inasmuch  as  every  man 
is  presumed  to  be  sane,  the  burden  of  proof  rests  on  the 

1  Mayor  of  Baltimore  v.  Norninn,  4  Md.  S52  (1S53). 
3  Cuuuiugham  f.  Slate,  5G  Miss.  209  (1879). 


590  presujMPTive  evidence.  rule    221.] 

party  setting  insanity  up  as  a  defenes  to  establish  this 
insanity  beyond  a  reasonable  doubt.  This,  it  will  be 
observed,  entirely  extinguishes  the  presumption  of  inno- 
cence in  the  conflict  between  that  and  the  other  presump- 
tion—  the  presumption  of  insanity.  The  second  view 
likewise  considers  the  presumption  of  innocence  overthrown 
by  the  presumption  of  sanity,  but  holds  that  the  presump- 
tion of  sanity  will  prevail  only  until  it  is  shown  to  be 
otherwise  in  the  particular  case  by  a  preponderance  of  the 
evidence.  In  the  third  view  the  presumption  of  innocence 
prevails  to  a  certain  extent,  for,  in  the  jurisdictions  where 
this  view  is  favored,  it  is  held  that  insanity  being  pleaded 
the  burden  of  proof  rests  on  the  State  to  prove  the  sanity 
of  the  prisoner.  It  is  not,  however,  held  in  the  States 
which  have  adopted  this  view  that  insanity  is  presumed,  but 
the  rule  is  that  if  the  prisoner  gives  any  evidence  to  cast  a 
doubt  on  his  sanity,  the  State  is  obliged  to  prove  his  sanity 
beyond  a  reasonable  doubt. 


INDEX. 


[The  numbers  refer  to  the  pages.'] 

ABSENCE. 
See  Death. 

ACCEPTANCE. 
See  Interest 

ACCIDENT. 
See,  also,  Survtvorship. 
To  prove  that  the  crime  was  not  accidental,  separate  crime  may  be 
shown,  488. 
Keasons,  490. 

ADULTERY. 
See  Intent. 

AGENCY. 

Authority  to  do  an  act  presumed  to  continue,  172. 
Illustrations,  175. 

ALTERATIONS. 
See,  also,  Spoliation. 
Alterations  presumed  to  be  made  before  execution  of  instrument, 
381. 
Illustrations,  381. 
Reasons,  382-386. 

Exceptions,  387-389. 
When  this  presumption  does  not  obtain  — 

1.  Where  alteration  is  in  different  hand,  389. 

Illustrations,  3!)0. 

Reasons,  390-392. 

2.  Or  in  different  ink,  389. 

Illustrations,  393. 

3.  Or  is  in  interest  of  party  setting  it  up,  389. 

Illustrations,  394. 

Reasons,  394-39G. 

4.  Or  is  suspicious  on  its  face,  389. 

Illustrations,  396. 

6.  Or  execution  of  Instrument  is  denied  under  oath,  389. 

Illustrations,  397. 

Reasons,  397-400. 

(591) 


502  IKDEX. 

ARSON. 
See  Intent. 

ASSENT. 

Presumption  that  person  hears  statement  in  his  presence,  279. 

ATTEMPT. 

Former  attempt  raises  presumption  of  guilt,  507. 
Illustralious,  508. 

ATTORNEY. 
See  Official  Acts. 

AUTHORITY. 
See  Officers;  Agency. 

BANKING. 

See  Course  of  Business.  • 

BILLS  AND  NOTES. 
See  Alterations  ;,  Negotiable  Paper. 

BONDS. 

Presumed  paid  after  twenty  years,  308. 
Illustrations,  315. 
Reasons,  315. 

BURDEN  OF  PROOF. 

Burden  on  party  to  show  facts  which  he  best  knows,  20. 
Illustrations,  20. 
Reasons,  20-23. 
Burden  on  party  alleging  notice  to  bona  fide  holder,  23. 

BUSINESS  ACTS. 
See  Course  of  Business. 

CARRIERS. 
See  Chattels. 

CHARACTER. 

Character  and  habit  of  person  presumed  to  continue,  180. 
That  a  gambler  continues  a  gambler,  180. 
That  a  person's  character  continues  bad,  181. 
Reasons,  181,  182. 
.  Good  character  presumed,  442. 

CHATTELS. 

Personal  property,  possession  of  raises  presumption  of  ownership, 

420. 
So  these  presumed  owners  — 

Person  in  possession  of  vessel,  420. 
Of  sheep, 420. 
Of  bonds,  420. 


INDEX.  5U3 

CHATTELS  —  Continued. 
Of  note,  420, 
Of  calf,  420. 

Shipping  property  by  carrier,  420. 
Kcasons,  420-429. 

CIRCUMSTANCES,  CUANGE  IN. 
See  Habits. 

COMMON  LAW. 
See  Foreign  Laws. 

CONDUCT  OF  PRISONER. 
See,  also,  Feau;  Flight;  Escape;  Silence;  Spoliation. 
False  or  coutratlictory  accounts  by  prisouer,  630. 
Illustrations,  530. 
Reasons, 531-533. 

CONFLICT  OF  LAWS. 
See  Foreign  Laws. 

CONFLICTING  PRESUAfPTIONS. 
Of  payment  and  continuance,  582. 

Illustrations,  682. 
Of  innocence  and  payment,  582. 
Illustrations,  682. 
Reasons,  682. 
Of  innocence  and  continuance  of  life,  582. 
Illustrations,  583. 
Reasons,  584. 
Of  innocence  and  continuance  of  things,  682. 
Illustrations,  585. 
Reasons,  585. 
Of  innocence  and  marriage,  582. 

Illustrations,  587. 
Of  innocence  and  chastity,  582, 
Illustrations,  587. 
Reasons,  587. 
Of  knowledge  of  law  and  innocence,  682. 

Illustrations,  589. 
Of  sanity  and  innocence,  582. 
Illustrations,  68'J. 

CONTENTS  OF  WRITING. 
Sec  Knowledge. 

CONTINUANCE. 
See,  also,  Life;  Death. 
Continuance  of  things,  presumption  of,  1C3. 

Possession  or  ownership  of  property  presumed  to  continue,  1G3. 
Reasons,  1G3. 

88 


594  INDEX. 

CONTINUANCE  —  Continuod. 

Non-possession  or  loss  of  property  presumed  to  continue,  153, 
1C4. 

Illustrations,  1G4. 
Debts  presumed  to  continue,  1C3,  165. 

Illustrations,  1G5. 
Seasons,  1G5. 
Other  cases  of  continuance,  106. 

That  goods  in  carrier's  hands  remain  in  good  order,  166. 

That  vessel  continues  seaworthy,  IGC. 

That  party  continues  to  possess  money,  16G. 

That  decree  in  chancery  continues  iu  force,  1G7. 

That  custom  continues  in  force,  107. 
Eeasons,  107-172. 
Domicil,  residence    or  uon-residenee   presumed    to    continue, 
172. 

Illustrations,  172. 
Seasons,  173. 
Solvency  or  insolvency  presumed  to  continue,  172. 

Illusti'ations,  173,  174. 
Infancy  presumed  to  continue,  172. 

Illustrations,  174r. 
Eeasons,  174. 
Partnership  presumed  to  continue,  172. 

Illustrations,  175. 
Oflice,  holding  of,  presumed  to  continue,  172. 

Illustrations,  175. 
Authority  to  do  an  act  presumed  to  continue,  172. 

Illustrations,  175. 
Other  cases  of  continuance,  175. 

That  parties  live  in  same  relation,  175. 

That  a  person  continues  a  stockholder,  175. 

That  state  of  peace  continues  in  country,  176. 

That  state  of  war  continues  in  country,  170. 

That  public  treaty  is  still  in  force,  170. 

That  same  state  of  government  still  exists,  170. 

That  corporation  still  exists,  176. 

That  illicit  intercourse  continues  between  parties,  176. 

That  person's  veracit}'  is  still  good,  176. 

Tliat  woman  continues  unmarried,  17G. 

That  common  law  continues  in  force,  176. 

That  a  person  disabled  continues  so,  176. 

That  judge  continues  interested  in  property,  176. 

That  execution  remains  in  sheriff's  oflSce,  177. 
Eeasons,  177,  178. 
Sanity  or  insanity  presumed  to  continue,  179. 

Unless  temporary,  179. 


INDEX.  595 

CONTIXTANCE  —Continued. 

Character  and  habit  of  person  presumed  to  continue,  180. 
That  a  gambler  continues  a  gambler,  180. 
That  a  person's  character  continues  bad,  181. 
Reasons,  181,  182. 
Acts  done  in  one  case  do  not  prove  similar  act  done  in  another,  182. 
That  person  enters  into  contract  with  A.  no  proof  that  he  did  so 

with  B.,  182. 
That  person  was  negligent  in  one  case  no  proof  that  he  was  so  in 

another,  182. 
That  sale  to  A.  was  made  on  condition  no  proof  that  sale  to  B. 

was  made  on  like  condition,  182. 
That  A.  sold  diseased  hog,  no  proof  that  he  sold  diseased  beef, 

182. 
That  credit  was  given  to  A.  once,  no  proof  that  it  was  given  to 

A.  again,  182. 
That  some  of  A.'s  servants  were  paid,  no  proof  that  others  were, 

183. 
That  A.  promised  to  pay  B.'s  debt  no  proof  that  he  promised  to 
pay  C.'s,  183. 
Reasons,  183-184. 
But  person  presumed  to  follow  his  habit,  184. 
Illustrations,  184-186. 
Reasons,  186-187. 
Future  continuance  not  presumed,  187. 
Illustrations,  188. 
Reasons,  188. 
Admission  made  does  not  extend  in  future,  189. 
Illustrations,  189. 

Reasons, 189-190. 
Presumption  is  not  retrospective,  190. 
Illustrations,  190. 
Reasons,  190-191. 
Presumption  of  continuance  weaker  than  presumption  of  innocence, 
191. 

CONTRACTS. 
See  Course  of  Buseotss;  Documents;  Services. 

CORPORATION. 
See  Officers. 

COURSE  OF  BUSINESS. 
See  Sf.rvices;  Negotiable  Paper;  Dates;  Documents.  ' 

Business  acts,  regularity  of  presumed,  6.7 
That  written  agreement  was  signed,  67. 
That  partners  arc  interested  in  equal  shares,  67. 
That  letters  are  sent  in  course  of  business,  67. 
That  persons  doing  business  together  are  partners,  68. 


59G  INDEX. 

COURSE  OF  BUSINESS  — Continued. 

That  party  waives  defects  in  goods  by  keeping  them,  68. 
That  a  person  is  a  partner,  68. 
That  note  is  a  firm  note,  G8. 

That  accounts  are  received  by  attorney  for  collection,  68. 
That  account  books  of  partnership  are  correct,  68. 
That  goods  are  to  be  paid  for  on  delivery,  68. 
That  a  person  promises  to  pay  borrowed  money,  68. 
That  a  person  has  funds   to  pay  draft  on  himself  which  he  ac- 
cepts, 68. 
That  a  person  is  engaged  by  the  month,  G8. 
That  freight  earned  belongs  to  owners  of  vessel,  68. 
That  goods  charged  were  delivered,  68. 
That  one  selling  to  another  on  credit  thinks  him  solvent,  68. 
That  a  partnership  is  solvent,  69. 
Of  solvency  from  unsatisfied  judgments,  69. 

And  uncollectible  debts,  69. 
That  letter  was  mailed  on  day  of  post-mark,  69. 
That  two  signing  note  are  equally  bound,  69. 
That  letter  written  by  a  person  is  signed  by  him,  69. 
That  post-marked  letter  has  been  through  the  mail,  69. 
That  building  is  attached  to  the  soil,  69. 
That  damage  has  been  assessed,  69. 
That  deed  given  to  a  person  is  in  his  control,  69. 
That  persons  making  joint  mortgage  are  equal  owners,  69 
That  bank-notes  are  genuine,  65. 
That  receipt  is  given  for  goods  received,  70. 
That  account  kept  by  customer  is  correct,  70. 
That  person  r^emaining  silent  acquiesces  in  stated  condition, 

70. 
That  holder  is  owner  of  note  payable  to  bearer,  70. 
Presumption  as  to  bills  and  notes,  70. 
And  as  to  money  in  war  time,  70. 
Reasons  for  these  rulings,  70,  72. 
Persons  in  trade  presumed  to  know  value  of  articles  in  the  trade   72. 
And  their  names,  72. 
And  the  customs  of  the  trade,  72,  73. 

COURSE  OF  NATURE. 
See  Nature,  Course  of. 

COURTS. 
See  Judicial  Acts. 

COVENANTS. 

Presumed  performed  after  twenty  years,  308. 
Illustrations,  320. 
Reasons,  321. 

CRIMINAL  LAW. 
See  I^•^'ocE^•CE  (Criminal  Cases)  ;  Guilt. 


INDEX.  507 

CUSTOMS  OF  TRADE. 

See   IvNOWLEDGE. 

DAMAGES. 

See  \VlTNESSE3. 

DATES. 

Dates,  presumed  to  be  correct,  89, 

Tlmt  letters  were  written  on  their  date,  89. 

Tliut  bill  of  exchange  was  issued  on  date,  89. 

That  payment  was  made  on  date  of  receipt,  89. 

That  deed  was  executed  on  its  date,  89. 

That  indorsements  of  receipts  of  interest  was  made  on  their 

date,  89. 
That  assignment  was  executed  on  day  of  date,  89. 
That  name  was  written  on  back  of  note  at  time  of  making,  00. 
That  action  was  commenced  on  day  of  date  of  writ,  90. 
No  presumption  as  to  letter  between  husbiind  and  wife,  90. 
Reasons,  90-92. 
But  do  not  prove  collateral  facts,  92. 

As  that  party  was  in  city  of  date  at  that  time,  92. 

DEATH. 
See,  also.  Life  ;  SumTV'ORsnip. 
Death  may  be  proved  by  reputation,  197. 
Or  by  hearsay,  197. 

Or  by  facts  inconsistent  with  continuance  of  life,  197. 
Illustrations,  197. 
Unmarried  person  presumed  to  have  died  childless,  197. 

Aliter  as  to  married  person,  197. 
Presumption  that  person  left  heir,  198. 
Illustrations,  198. 
Reasons, 198-199. 
Death,  presumption  of,  200. 

Absentee  for  seven  years  presumed  to  have  died  at  end  of  that 
term,  200. 
Illustrations,  200-202. 
English  rule  different,  201,  note. 
Reasons,  202-211. 
Rule  in  the  civil  law,  211. 
What  is  an  "absentee,"  212. 
Illustrations,  212-213. 
Reasons,  213-2U. 
Where  removal  is  temporary,  absence  alone  presumes  death,  212. 

Illustrations,  214. 
But  when  parmanent,  inquiry  at  new  abode  must  be  proved,  212. 
Illustrations,  214. 
Reasons,  215. 


598  INDEX. 

DEATH  — Continued. 

"Persons  who  would  naturally  hear  from  him"  include  relativesf.nd 
strangers,  215. 
Illustrations,  215. 
Reasons,  215 
Whatis  meant  by  *'  not  being  heard  of,"  216. 
Illustrations,  216. 
Eeasons,  216-221. 
"What  is  absentee's  "residence,  home  or  domicil,"  222. 
Illustrations,  222. 
Reasons,  222. 
Presumption  arises  that  party  has  died  within  seven  years  — 

1.  When  last  heard  of  he  was  in  desperate  health,  222. 

Illustrations,  222. 
Reasons,  223. 

2.  Or  within  that  time  he  embarked  on  vessel  not  since  heard  of 
of  and  overdue,  223. 

Illustrations,  223,  224. 
Reasons,  225-230. 
8.  Or  within  that  time  he  encountered  a  specific  peril,  230. 
Illustrations,  230. 
Specific  peril  does  not  mean  ordinary  oerils  of  navigation, 

230. 
But  means  an  unusual  or  extraordinary  peril,  230,232. 
4.  Or  his  habits,  relations  or  necessities  would  have  necessitated 
his  communicating  with  his  friends,  233. 
Illustrations,  233,  237. 
Presumption  of  death  at  end  of  seven  years  does  not  arise  — 

1.  Where  it  is  improbable  party  even  if  alive  would  have  been 
heard  of,  237. 

Illustrations,  237. 
Reasons,  237-239. 

2.  Where  he  is  mentioned  as  alive  in  subsequent  judicial  pro- 
ceedings, 237. 

Illustrations,  239. 

DEBTS. 

Debts  presumed  to  continue,  1G3,  165, 
Illustrations,  165. 
Reasons,  165. 

DEEDS  —ALTERATIONS. 
See  Documents  ;  Real  Property. 

DEFINITIONS. 

Definition  of  "  presumption,"  556. 
Definition  of  "  presumption  of  law,"  656. 
Definition  of  presumption  of  fact,  556. 
Illustrations,  559-560. 
Reasons,  560-569. 


INDEX.  599 

DESTRUCTION  OF  EVIDENCE. 
See  Si'OLiATio.v. 

DISCHARGE  OF  OBLIGATIONS. 
See  Taymknt. 

DOCUMENTS. 

Documents  presumed  to  be  regularly  executed,  8?. 

That  agreement  is  stamped  as  statute  requires,  82,  83 
That  assignment  is  properly  enrolled,  82. 
That  deed  was  sealed,  83. 
That  deed  was  delivered,  83. 
That  deeds  were  delivered  in  proper  order,  83,  84. 
That  mortgage  was  properly  executed,  84. 
That  deed  was  delivered  ou  day  of  date,  84. 
That  consideration  was  money  value,  84. 
That  agreement  is  in  writing,  84. 
That  deeds  were  signed  in  proper  order,  85. 
That  mortgage  was  executed  where  land  lies,  85. 
That  mortgage  was  paid  on  day  due,  85. 
That  land  was  properly  located,  85. 
Reasons  for  the  rulings,  85-83. 

DOMICIL. 
See  also,  Death. 
Domicil,  residence  or  non-residence  presumed  to  continue,  172. 
Illustrations,  172. 
Reasons,  173. 

DRUNKENNESS. 
See  Intent. 

ESCAPE. 

Attempts  to  escape  raise  presumption  of  guilt,  537. 
Illustrations,  537. 
Reasons,  538. 
Aliter  wlien  it  is  for  another  crime,  537, 
Illustrations,  539, 

EVIDENCE. 
See  Witnesses. 

FABRICATION  OF  E\T:DENCE. 
See  SroLiATiox. 

FAILURE  TO  TESTIFY 
See  Witness. 

FALSIFICATION  OF  EVIDENCE. 
See  Spoliation. 


600  INDEX. 

TEAR. 

Fear  raises  presumption  of  guilt,  534. 
Illustrations,  53-i. 
Reasons,  53-1-536, 
Aliter  when  fear  may  be  on  account  of  another  crime,  534. 
Illustrations,  536. 

FATHER  AND  SOX. 
See  Identity;  Survivorship. 

FLIGHT. 

Flight  raises  presumption  of  guilt,  637. 
Illustrations,  537. 
Reasons,  537. 

FOREIGN  LAWS. 

Presumption  as  to,  358. 

Law  of  forum  presumed  to  be  the  law  of  foreign  state,  358. 
Illustrations,  358-3G0. 
Reasons,  360-3G5. 
Acts  malum  in  se  presumed  to  be  crimes  in  foreign  country,  365. 

Illustrations,  8G5. 
No  presumption  of  identity  of  law  as  to  country  not  subject  to  com- 
mon law,  3G6. 
Illustrations,  3G6. 

Reasons,  366-369. 
Or  tribe  or  nation  uncivilized,  366. 
Illustrations,  369. 
Constructed  of  an  adopted  statute,  369. 

Illustrations,  369. 
••  Law  "  means  common  and  not  statute  law,  370. 
Illustrations,  370,  372. 

Reasons,  370,  373-379. 
But  not  rule  of  common  law  which  has  exceptions,  379. 
Illustrations,  379. 

FRAUD. 

Fraud  never  presumed,  93,  98,  439. 

That  documents  were  fairly  obtained,  98. 

That  party  owns  land  he  conveys,  98. 

That  party  not  guilty  of  fraud,  98. 

That  goods  were  not  sold  contrary  to  law,  101. 

That  contract  is  not  usurious,  102. 

Tliat  act  entailing  penalty  has  not  been  done,  102. 

That  seller  of  liquor  has  a  license,  102. 

That  future  tenants  will  not  violate  the  law,  102. 

That  sale  was  not  fraudulent,  439. 

That  exchange  of  property  was  bona  fide,  440. 

That  party  did  not  misappropriate  papers,  440. 

That  mortgage  is  valid,  440. 


INDEX.  GOl 

FRAUD  —  Contiiincd. 

That  adiiiiuistrator  has  made  proper  return,  440. 
Fraud  may  be  inferred  f rom  cireiunstances,  100. 
Reasons  for  the  rule,  'J'J,  440,  442. 

FRUITS   OF  CRIME. 
See  Habits. 
Possession  of  fruits  of  crime  raises  presumption  of  guilt,  615. 
lUustratious,  51G. 
Reasons,  61G. 
Recent  possession  in  larceny  or  robbery,  518. 
Illustrations,  518. 

Reasons,  519-522. 
Reasonable  explanation  of  possession  overthrows  presumption, 
622. 
Illustrations,  522. 
Reasons,  622. 
Unless  explanation  inconsistent,  622. 
Illustrations,  523. 
Reasons,  523. 
What  is  or  is  not  "recent,"  624. 
Kind  of  property  a  test,  624. 
Illustrations,  625. 
Reasons,  626-529. 

GIFT. 
See  IXTEXT. 

GUILT. 

Presumptions  of,  493-554. 

Motive,  guilt  presumed  from,  403. 
Methods  of  showing  motive,  496. 
Desire  of  gain,  495. 
Illustrations,  49G. 
Reasons,  49G-498. 
Gratification  of  passion,  495. 
Illustrations,  498. 

Reasons,  499-505. 
Preservation  of  reputation,  495. 
Illustrations,  505. 
Opportunity  raises  presumption  of  guilt,  606 
Illustrations,  506. 

Unless  another  had  better  opportunity,  606. 
Illustrations,  506. 
Former  attempt  raises  presumption,  507. 
Illustrations,  507. 
Reasons,  508. 
Preparations  raise  presumption,  503. 
To  acfomplish  crime,  608. 
Illustrations,  608. 


G02  INDEX. 

GUILT  — Continued. 

To  prevent  discovery,  503 

Illustrations,  509. 
To  aid  escape,  508. 

Illustrations,  509. 
To  avert  suspicion,  508. 
Illustrations,  509. 
Reasons,  510. 
Aliter  where  preparations  innocent,  510. 

Illustrations,  510. 
Or  for  another  crime,  510. 

Illustrations,  511. 
Or  crime  frustrated  or  abandoned,  510. 
Illustrations,  511. 
Threats  raise  presumption  of  guilt,  511. 
Illustrations,  511. 
Reasons,  512. 
Aliter  when  another  may  have  executed  them,  612. 
Illustrations,  513. 
Possession  of  means  of  committing  crime  raises  presumption, 
513. 

Illustrations,  513. 
Reasons,  514. 
Varies  as  to  occupation,  character,  or  sex  of  prisoner,  513. 
Illustrations,  515. 
Possession  of  fruits  of  crime  raises  presumption,  515. 
Illustrations,  516. 
Reasons,  51G. 
Recent  possession  in  larceny  or  robbery,  518. 
Illustrations,  518. 

Reasons,  519-522. 
Reasonable  explanation  of  possession  overthrows  presump- 
tion, 522. 

Illustrations,  522. 
Reasons,  522, 
Unless  explanation  inconsistent,  522. 
Illustrations,  623. 
Reasons,  523. 
What  is  or  is  not  "  recent,"  524. 
Kind  of  property  a  test,  624. 
Illustrations,  525. 
Reasons,  62G-529. 
Change  in  life  and  circumstances  of  prisoner,  529. 

Illustrations,  529. 
False  or  contradictory  accounts  by  prisoner,  630. 
Illustrations,  530. 
Reasons,  631-533. 


rxDEX.  COS 

GUILT  — Continued. 

Attempt  to  thwart  investigation,  533. 

Illustrations,  533. 
Tear  raises  presumption  of  guilt,  634. 
Illustrations,  534. 

Reasons,  534-536. 
Aliter  when  fear  may  be  on  account  of  another  crime,  634. 
Illustrations,  53(!. 
Flight  raises  presumption  of  guilt,  537. 
Illustrations,  537. 
Reasons,  537. 
Attempts  to  escape  raise  presumption,  537. 
Illustrations,  537. 
Reasons,  538. 
Aliter  when  it  is  for  another  crime,  637. 
Illustrations,  539. 
Destfuction  of  evidence  raises  presumption,  639. 

Illustrations,  541. 
Concealment  of  evidence,  539. 

Illustrations,  541. 
Fabrication  of  evidence,  639. 
Illustrations,  542. 
Reasons,  543. 
Silence  when  interrogated  raises  presumption,  515. 
Illustrations,  545. 
Reasons,  546. 
Unless  in  judicial  interrogation,  545. 
Illustrations,  549. 
Reasons,  549. 
Failure  to  produce  evidence  raises  presumption,  649. 
Illustrations,  551. 
Reasons,  551. 
Prisoner  declining  to  testify  in  his  own  behalf,  651. 

HABITS. 
See,  also,  Character. 
Change  in  life  and  circumstances  of  prisoner  raises  presumption  of 
guilt,  520. 

Illustrations,  529. 

HANDWRITING. 
See  Alterations. 

HUSBAND   AND   WIFE. 

Presumed  coercion  of  wife,  279. 

That  husband  is  head  of  family,  270. 

That  deed  to  wife  is  in  custody  of  husband,  279. 

Presumption  as  to  child  bearing,  302. 


C)04  INDEX. 

IDENTITY. 

Identity,  presumption  of,  248. 

Identity  of  name  raises  presumption  of  identity  of  person  — 

1.  Where  there  is  similarity  of  residence,  248. 

Illustrations,  250. 

2.  When  there  is  similarity  of  trade,  248. 

Illustrations,  250. 
Reasons,  251. 

3.  When  there  is  similarity  of  circumstances,  248. 

Illustrations,  250. 

4.  Where  name  is  an  unusual  one,  248. 

Illustrations,  252. 

Reasons,  253,  254. 
No  presumption  where  name  is  a  common  one  or  there  are  sev- 
eral of  same  name  at  place,  248. 
Illustrations,  254. 
Family  name  and  initials  the  same  raises  no  presumption  of 
identity,  255. 
Illustrations,  255. 
Reasons,  255. 
Two  persons  of  same  name  occupy  different  positions  and  rela- 
tions— presumption  is  that  they  are  different  persons,  256. 
Illustrations,  256. 
Initials  preceding  name,  construction  of,  257. 
When  interest  is  claimed,  identity  of  name  insufficient,  257. 

Illustrations,  257. 
Father  and  son  or  two  persons  of  same  name,  presumption  that 
name  means  eldest,  258.  ' 

Illustrations,  258. 

Reasons,  259,  260. 
Aliter  as  to  mother  and  daughter,  260. 
Identity  of  things  presumed  from  circumstances,  261. 
Illustrations,  261. 

IMPLEMENTS   OF   CRIME. 

See  Means  of  Committing  Crime. 

INFANCY. 

Infancy  presumed  to  continue,  172. 
Illustrations,  174. 
Reasons,  174. 
Responsibility  of  infant  for  crime,  279. 

INITIALS. 
See  Identity. 

INK. 
See  Alterations. 


IXDEX. 


605 


INNOCENCE  (Cu-j7  Cases). 
See,  also,  Fraud;  Nkohgexce. 
luuocence  in  civil  cases  presumed,  03. 

That  parties  cohabiting  are  married,  93. 

That  persons  of  different  colors  living  together  are  not  married, 

93. 
That  husband   living  with  woman  other  than  his  wife   is   di- 
vorced, 93. 
Marriage  presumed  to  legalize  acts,  93,  94. 
That  car  tracks  in  street  are  necessary,  94. 
That  visits  of  physician  were  necessary,  94. 
That  insolvent  exhibits  true  account,  94. 
That  prosecution  was  for  cause,  94. 
That  lost  decree  of  divorce  was  recorded,  95. 
Reasons  for  the  rulings,  95. 

INNOCENCE  {Criminal  Cases). 

Three  famous  things  In  law,  433. 

The  presumption  of  innocence,  433. 
The  reasonable  doubt,  434. 
The  burden  of  proof,  434. 
Innocent,  person  charged  with  crime  presumed,  433. 

That  two  of  different  sexes  living  together  aud  cohabiting  are 
married,  433. 
Aliter  if  marriage  between  them  is  prohibited,  434. 
From  taking  thing  no  presumption  of  theft,  435. 
Person  marrying  again,  first  husband  or  wife  presumed  dead 

or  divorced,  435. 
That  marriage  was  properly  solemnized,  435. 
That  notice  as  required  by  statute  was  given,  436. 
That  works,  otherwise  a  nuisance,  are  necessary,  436. 
That  physician's  visits  are  necessary,  436. 
That  person  holding  ofDce  has  qualifled,  430. 
That  sworn  account  is  true,  436. 
That  prosecution  is  for  cause  and  not  malicious,  436. 
That  statute  is  not  violated,  430. 
Other  illustrations,  438. 
Reasons,  437-439. 
Good  character  presumed,  442. 

Presumption  of  innocence  not  taken  away  hy  prima  facie  case,  445. 
Illustrations,  445. 

Reasons,  445-447. 
Presumption  of   innocence  prevails    over  presumption  of   continu- 
ance of  life,  447. 
Illustrations,  449. 
Reasons,  448. 
Presumption  of  innocence  prevails  over  presumption  of  continuance 
of  things  generally,  447. 


GOG  INDEX. 

INNOCENCE  {Criminal  Casses;  —  Continued. 
Illustrations,  449. 
Reasons,  450. 

Exception,  450, 
Presumption  of  innocence  prevails  over  presumption  of  marriage,  447. 

Illustrations.  451. 
Presumption  of  innocence  prevails  over  presumption  of  chastity,  447. 
Illustrations,  451. 
Reasons,  452. 
Presumption  of  innocence  weaker  than  presumption  of  knowledge 
of  law,  447. 

Illustrations,  453. 
Reasons,  454-457. 
Presumption  of  innocence  weaker  than  presumption  of  sanity,  447, 
Illustrations,  457. 
Reasons,  458. 
The  burden  of  proof  of  insanity,  450. 
Presumption  of  innocence  strengthened  by  relation  of  parties,  460. 

As  that  murdered  person  is  wife  of  suspected  murderer,  4C0. 
But  presumption  of  innocence  overcome  by  finding  of  indictment 
except  for  purpose  of  trial,  4G0. 
Illustration,  4G0. 
Qualification  to  do  act  presumed,  4G1. 

Therefore  these  presumptions  arise  — 

That  parties  living  together  as  husband  and  wife  are  mar- 
ried, 4G1. 
That  consent  to  sale  of  liquor  to  prohibited  party  has  been 

given,  4G1. 
That  party  has  consent  to  do  act  requiring  consent,  461. 
That  officer  made  report  required  by  statute,  4G1. 
Reasons,  4G2-4G5. 
Aliter  where  proof  is  peculiarly  in  possession  of  defendant,  4G1. 
As  that  bailiff  has  public  license  to  do  act,  465 
Other  illustrations,  4G5. 
Reasons,  4G5. 
"Even  though  it  may  involve  defendant  in  proving  his  innocence, 
461. 
Illustration,  4GG. 
Person  presumed  to  intend  natural  consequences  of  his  acts,  467. 
Illustrations,  467. 
Reasons,  468. 
Where  act  criminal  per  se  criminal  intent  presumed,  469. 
Illustrations,  469. 

Reasons,  469-472. 
Unless  specific  intent  required  by  statute,  472, 
Illustration,  472. 
Reasons,  473. 

Dr.  Wharton's  illustrations,  474. 


INDEX.  007 

DsXOCENCE  {Criminal  Crtsscs) —Continued. 

Possession  may  overthrow  presumption  of  innocence,  478. 

Illustrations,  478-481. 
Knowledj^e  may  overthrow  presumption  of  iuuocence,  473. 

Illustrations,  478-481. 
Motive  may  overthrow  presumption  of  innocence, '478. 

Illustrations,  478-481.   . 
Other  crime  than  that  charged  can  not  be  proved  against  prisoner,  481. 
Illustrations,  481-483. 
As  that  prisoner  had  tendency  to  commit  crime  of  Icind  charged, 

483. 
That  person  indicted  for  raping  T.  had  raped  L.,  483. 
That  person  indicted  for  poisoning  his  wife  had  been  intimate 

with  woman  whose  husband  had  been  poisoned,  483. 
That  one  indicted  for  riot  had  participated  in  a  previous  riot, 

483. 
That  person  indicted  for  forging  A.'s  name  had  forged  B.'s,  483. 
That  one  indicted  for  hiring  A.  to  steal  had  hired  him  to  forge, 

483. 
That  person  indicted  for  stealing  from  B.  had  assaulted  him, 

483. 
That  person  indicted  for  stealing  a  horse  had  stolen  money,  483. 
That  person  charged  with  performing  abortion  on  A.  had  doue  so 

onB.,  483. 
That  person  charged  with  murder  of  illegitimate  child  had  com- 
mitted rape,  484. 
That  woman  charged  with  killing  one  child  had  killed  another, 
484. 
Keasons,  484,  485. 
Other  instances,  48G. 
To  prove  knowledge  or  intent,  another  crime  may  be  shown,  487. 
Illustrations,  487. 
Keasons,  487,488. 
To  prove  motive,  another  crime  may  be  shown,  487. 

Illustrations,  488. 
To  prove  that  crime  was  not  accidental,    separate  crime  may  be 
shown,  488. 
Illustrations,  489. 
Reasons,  490. 
Ites  geatce  may  be  proved  though  another  crime,  490. 
Illustrations,  490. 

Reasons,  491,  492. 

INSANITY. 

Sanity  or  insanity  presumed  to  continue,  179. 
Unless  temporary,  179. 

INSOLVENCY. 
See  SoLNTENCY;  Course  of  Bcsintiss. 


G08  INDEX. 

INTEXT. 

Presumptions  of,  2C<2. 

Party  presumetl  to  intend  natural  consequences  of  his  acts,  262. 
That  libeller  intended  to  injure  libelled,  2G:2. 
That  party  selling  bad  bread  intended  it  to  be  eaten,  202. 
That  party  conveying  to  creditor  intended  to  prefer   him, 

262. 
That  person  stopping  in  house  of  ill-fame  has  intercourse, 

2G2. 
That  person  removes  to  anotherJ]State  to  obtain  divorce, 

263. 
That  person  preferring  creditor  intended  to,  2C3. 
Reasons,  2G3-2C4. 
Party  presumed  to  intend  legal  consequences  of  his  acts,  202. 
That  persons  signing  "  as  trustees  "  intended  to  bind  them- 
selves personally,  204. 
That  persons  giving  receipt  under  seal  intended  it  to  be 
conclusive,  264. 
Aliter  as  to  receipt  not  under  seal,  264, 
That  one  forging  another's  name  intended  to  defraud  him, 

204. 
That  person  firing  building  intended  to  destroy  it,  204. 
That  person  giving  note  intends  it  to  be  paid  in  legal  cur- 
rency, 264.  i 
Reasons,  205-200. 
Act  criminal  per  se  presumed  to  be  criminally  intended,  206. 
Illustrations,  206. 

Reasons,  260-271. 
But  where  specific  intent  required  it  must  be  proved,  271. 
Illustrations,  271. 
Reasons, 271. 
Intent  presumed  from  acts  in  absence  of  declarations,  272, 
Illustrations,  272. 

Reasons,  272-274 
Unless  party  is  physically  or  mentally  unable,  272. 
Illustrations,  274, 

As  when  drunken,  274. 
Reasons,    274-275. 
Person  presumed  to  intend  to  do  what  is  within  his  right  and 
power,  and  not  what  is  beyond  them,  270. 
Illustrations,  270,  277. 
Reasons,  277-278. 
To  prove  intent,  another  crime  may  be  shown,  487. 
Illustrations,  487. 

Reasons,  487,  488. 

INTEREST,  ACTS  IN   ONE'S. 

Person  presumed  to  act  in  his  own  interest,  303. 


IXDEX.  609 

INTEREST,  ACTS  IN  ONE'S  — Continued. 

That  person  accopta  estates  devised  to  him,  303, 

Or  conveyed  to  him,  303. 
That  charter  is  accepted  by  grantee,  304. 

That  wife  elects  to  take  provision  most  beneflcial  to  her,  304, 
That  person  assents  to  arrangement  for  his  benefit,  304. 
That  creditor  assents  to  assignment,  304. 
That  a  debt  is  paid  rather  than  a  loan  made,  304. 
That  legacy  to  creditor  is  payment  not  a  loan,  304. 
That  property  given  by  parent  to  child  is  an  advancement,  304. 
That  money  given  to  anotlier  is  a  loan  rather  than  a  gift,  305. 
That  A.  does  not  consent  to  arrangement  not  to  his  interest,  305. 
That  servant  performs  services  properly,  305. 
Reasons,  305-307. 

INTERNATIONAL   LAW. 
Presumptions  In,  150,  151. 

INTOXICATION. 
See  Intent. 

ISSUE. 

Presumptions  as  to  child  bearing,  302. 

JUDGMENTS. 

Judgments  presumed  paid  after  twenty  years,  308. 
Illustrations,  320. 

JUDICIAL  ACTS. 

Jurisdiction  of  court  of  general  jurisdiction  presumed,  27. 

Illustrations,  27. 
Jurisdiction  of  inferior  court  not  presumed,  27. 
What  is  an  "  inferior  court,"  29. 
Justice  of  the  peace,  29. 
Magistrate's  court,  29. 
County  Court  in  Iowa,  29. 
What  is  a  superior  court,  29. 
Common  law  courts,  29. 
Court  Palatine,  29. 
Court  of  Chancery,  29. 
Court  of  Probate,  29. 
County  Court  in  Iowa,  29. 
Examination  before  magistrates,  jurisdiction  not  presumed,  30. 
Jurisdiction  not  presumed  where  authority  is  given  in  certain  case 
or  for  special  purpose,  27. 
Illustrations,  31. 
Jurisdiction  not  presumed  where  proceedings  are  not  according  to 
common  law,  27. 
Illustrations,  33. 

89 


610  INDEX. 

JUDICIAL  ACTS  — Coutinucd. 

Eogularity  of  proceedings  of  courts  of  general  powers  presumed,  34. 
Decisions  in  the  different  States,  Si-ST. 

Illustrations,  37. 
That  resignation  of  officer  was  legal,  37. 
That  jury  were  properly  sworn,  37,  38,  39. 
That  infants  were  regularly  summoned,  37. 
That  bond  was  approved  by  court,  37. 
That  referee's  decision  was  made  on  merits,  37. 
That  charge  of  court  was  in  writing,  37. 
That  jury  were  discharged  with  consent,  38. 
That  evidence  warranted  master's  report  of  sale,  38. 
That  attorney  had  authority  to  execute  appeal  bond,  38. 
That  order  was  granted  on  proper  application,  38. 
That  special  term  of  court  was  properly  called,  38 
That  reason  for  exchange  of  judges  existed,  38. 
That  judge  authorized  by  law  presided,  38. 
That  jury  disregarded  improper  evidence,  38. 
That  vacancies  existed  in  offices,  38. 
That  jury  was  composed  of  twelve  men,  38. 
That  defendant  was  present  at  sentence,  39. 
That  evidence  justified  decree,  39. 

Other  illustrations,  39. 

Ecasons  for  rulings,  41-43. 
Regularity  of  proceedings  of  inferior  courts  presumed  where  juris- 
diction shown,  34. 
Illustrations,  43. 

That  entry  in  docket  was  properly  made,  43. 
That  proceedings  of  Probate  Court  were  regular,  43. 
That  appointment  was  made  in  proper  time,  43. 
That  court  was  open  at  proper  term,  43. 

Reasons  for  the  rulings,  44. 
Jurisdiction  of  person  beyond  territorial  limits  not  presumed,  45. 
Presumption  can  not  controvert  facts,  46. 

JURISDICTION. 

Jurisdiction  of  court  of  general  jurisdiction  presumed,  27. 

Illustrations,  27. 
Jurisdiction  of  inferior  court  not  presumed,  27. 
What  is  an  "  inferior  court,"  29. 
Justice  of  the  peace,  29. 
Magistrate's  court,  29. 
County  Court  in  Iowa,  29 
What  is  a  superior  court,  29. 
Common-law  courts,  29. 
Court  Palatine,  29. 
Court  of  Chancery,  29. 
Court  of  Probate,  29. 
County  Court  in  Iowa,  29. 


INDEX.  Gil 

JURISDICTIOX  — Continued. 

Examiuatioa  before  magistrates,  jurisdiction  not  presumed,  30. 
Jurisdiction  not  presumed  wlioru  uutliority  is  given  in  certain  case 
or  for  special  purpose,  27. 
Illustrations,  31. 
Jurisdiction  not  presumed  wliere  proceedings  are  not  according  to 
common  law,  27. 
Illustrations,  33. 
Jurisdiction  of  person  beyond  territorial  limits  not  presumed,  45. 

KNOWLEDGE. 

Knowledge  of  law,  presumption  of,  5. 

Every  person  presumed  to  know  the  law,  6. 
Meaning  of  the  maxim,  5. 

Illustrations,  (!. 
That  admissions  by  party  are  made  with  knowledge  of  lega[ 

rights,  G. 
That  persons  signing  note  "as  trustees"  intend  to  be   per- 
sonally bound,  t>. 
Promise  to  pay  enforced,  though  made  under  mistake  of  law 
as  to  liability,  6. 
Other  illustrations,  7. 
Reasons,  8-14. 
No  presumption  of  knowledge  of  private  or  foreign  laws,  14. 
As  by-laws  of  school,  14. 

Or  laws  of  Massachusetts  by  person  in  New  York,  14. 
Persons  engaged  in  trade  presumed  to  know  value  of  articles  dealt 
in,  15. 

Illustrations,  15. 

And  names  under  which  they  go,  15. 

Illustrations,  16. 
And  general  customs  of  the  trade,  15. 
Illustrations,  16. 
Reasons,  17, 18. 
Contents  of  writing  signed  by  party  presumed  to  be  known  to  signer 
18. 

Dlustrations,  18. 
Reasons,   I'J. 
So  of  paper  drawn  up  by  one  for  another,  13. 

Illustrations,  I'J. 
And  matters  referred  to  in  such  writing,  13. 
Illustrations,  I'.t. 
Burden  on  party  to  show  facts  which  he  best  knows,  20. 
Illustrations,  20. 
Reasons, 20-23. 
Burden  on  party  alleging  notice  to  bonafid^  holder,  23. 
Illustrations,  23. 


612  INDEX. 

IvXOWLEDGE  —  CoDtimied. 

No  presumption  that  party  not  called  as  -witness  has  kno^vledge  of 
facts,  23. 
Illustrations,  23. 
Knowledge  may  overthrow  presumption  of  innocence,  478. 

Illustrations,  478-481. 
To  prove  knowledge,  another  crime  may  be  shown,  487. 
Illustrations,  487. 

Reasons,  487,  483. 

LAPSE  OF  TIME. 
See  Payment  ;  Real  Property. 

L.A.RCENY. 
See  Recent  Possession. 

LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF. 
Knowledge  of  law,  presumption  of,  5. 

Every  person  presumed  to  know  the  law,  5. 
Meaning  of  the  maxim,  5. 

Illustrations,  6. 
That  admissions  by  party  are  made  with  knowledge  of  legax 

rights,  6. 
That  persons  signing  note  "as  trustees"  iutend  to  be   per- 
sonally bound,  6. 
Promise  to  pay  enforced,  though  made  under  mistake  of  law 
as  to  liability,  6. 
Other  illustrations,  7. 
Reasons,  8-14. 
No  presumption  of  knowledge  of  private  or  foreign  laws,  14. 
As  by-laws  of  school,  14. 

Or  laws  of  Massachusetts  by  person  in  New  York,  14. 
Persons  engaged  in  trade  presumed  to  know  value  of  articles  dealt 
in,  15. 

Illustrations,  15. 

And  names  under  which  they  go,  15. 

Illustrations,  IG. 
And  general  customs  of  the  trade,  15. 
Illustrations,  16. 
Reasons,  17, 18. 
Contents  of  writing  signed  by  party  presumed  to  be  known  to  signer, 
18. 
Illustrations,  18. 
Reasons,  19. 
So  of  paper  drawn  up  by  one  for  another,  18. 

Illustrations,  19. 
And  matters  referred  to  in  such  writing,  18. 
Illustrations,  19. 


INDEX.  013 

LAW  AND  FACT  GENERALLY,  PRESUMrTTOXS  OF— Continued. 
Burden  on  party  to  show  facts  which  he  best  kuows,  20. 
Illustrations,  20. 
Reasons, 20-23. 
Burden  on  party  alleging  notice  to  bonajide  holder,  23. 

Illustrations,  23. 
No  presumption  that  party  not  called  as  witness  has  knowledge  of 
facts,  23. 
Illii.strations,  23. 
Regularity  and  innocence,  presumptions  of,  27. 
Judicial  acts,  regularity  of,  27. 

Jurisdiction  of  court  of  general  jurisdiction  presumed,  27. 

Illustrations,  27. 
Jurisdiction  of  inferior  court  not  presumed,  27. 
What  is  an  *'  inferior  court,"  29. 
Justice  of  the  peace,  2!). 
Magistrate's  court,  29. 
County  Court  in  Iowa,  29. 
What  is  a  superior  court,  29. 
Common  law  courts,  29. 
Court  Palatine,  29. 
Court  of  Chancery,  29. 
Court  of  Probate,  29. 
County  Court  in  Iowa,  29. 
Examination  before  magistrates,  jurisdiction  not  presumed, 
30. 
Jurisdiction  not  presumed  where  authority  is  given  in  certain 
case  or  for  special  purpose,  27. 
Illustrations,  31. 
Jurisdiction  not  presumed  where  proceedings  are  not  according 
to  common  law,  27. 
Illustrations,  33. 
Regularity   of  proceedings  of  courts  of  general  powers  pre- 
sumed, 34. 
Decisions  in  the  different  States,  34-37. 

Illustrations,  37. 
That  resignation  of  officer  was  legal,  37. 
That  jury  were  properly  sworn,  37,  38,  30. 
That  infants  were  regularly  summoned,  37. 
That  Ijond  was  approved  by  court,  37. 
That  referee's  decision  was  made  on  merits,  37. 
Tluit  charge  of  court  was  in  writing,  37. 
That  jury  were  discharged  with  consent,  38. 
That  evidence  warranted  master's  report  of  sale,  38. 
That  attorney  had  authority  to  execute  appeal  bond,  38. 
That  order  was  granted  on  proper  application,  38. 
That  special  term  of  court  was  properly  called,  33 


G14  INDEX. 

LAW  AND  FACT  GENEEALLY,  PRESUMPTIONS  OF  — Continued. 

That  reason  for  exchange  of  judges  existed,  38. 

That  judge  authorized  by  law  presided,  38. 

That  jury  disregarded  improper  evidence,  38. 

That  vacancies  existed  in  offices,  38. 

That  jury  was  composed  of  twelve  men,  38. 

That  defendant  was  present  at  sentence,  39. 

That  evidence  justified  decree,  39. 
Other  illustrations,  39. 

Eeasousfor  rulings,  41-43. 
Regularity  of  proceedings  of  inferior  courts  presumed  where 
jurisdiction  shown,  34. 

Illustrations,  43. 

That  entry  iu  docket  was  properly  made,  43. 

That  proceedings  of  Probate  Court  were  regular,  43. 

That  appointmient  was  made  in  proper  time,  43. 

That  court  was  open  at  proper  term,  43. 
Reasons  for  the  rulings,  44. 
Jurisdiction  of  person  beyond  territorial  limits  not  presumed, 
45. 

Presumption  can  not  controvert  facts,  46. 
Official  authority,  regularity  of,  presumed,  47. 

That  officer  was  properly  appointed,  49. 

That  attorney  is  properly  enrolled,  49. 

That  vestry  clerk  is  properly  appointed,  49. 

So  as  to  pound-keeper,  49. 

as  to  collector  of  taxes,  49. 

As  to  church  warden,  50. 

As  to  master  in  chancery,  50. 

That  soldier  is  attested,  50. 

That  surrogate  has  authority  to  administer  oath,  60. 

That  person  is  officer  of  post-office,  50. 

That  trustees  have  authority,  50. 

That  notary  has  power  to  take  affidavits,  60. 

That  attorney  has  authority  from  client,  50. 
Reason  for  these  rulings,  50. 
Officers,  presumptions  that,  dp  their  legal  duty,  53. 

Illustrations  in  the  different  States,  54-55. 

That  officer  made  entries,  54. 

That  vote  of  council  was  unanimous,  55. 

That  officer  was  elected  by  ballot,  55. 

That  affidavit  was  made  in  court,  50. 

That  register  acted  on  proper  evidence,  56. 

That  levy  was  made  by  sheriff,  50. 

That  seal  is  good  without  wax,  56. 

That  appearance  was  entered  by  authorized  attorney,  56. 

That  proclamation  was  posted  by  order  of  commander,  56. 


'I 


INDEX.  015 

LAW  x\XD  FACT  GENERALLY,  PRESUMPTIONS  OF  — Continued. 

Tluit  proper  notice  was  given  bj"  odicers,  50. 

That  meetinj;  of  corporation  was  properly  adjourned,  57. 

That  fee  charged  is  legal,  57. 

That  summons  was  served  in  apt  time,  57. 

That  administrator  has  made  proper  settlement,  67. 

That  writ  was  properly  returned  by  sheriff,  57. 

That  public  surveyor  is  quulilled,  57. 

That  judgment  was  properly  recorded  by  recorder,  53. 

That  land  was  appraised  before  being  sold,  5rf. 

That  taxes  were  paid  by  testator,  68. 
Reasons  for  the  rulings,  59. 
Legislature  presumed  to  have  acted  properly,  58. 

That  bill  was  passed  constitutionally,  US. 

That  verbal  changes  in  bill  were  authorized,  58. 

That  Legislature  intended  to  omit  words  in  statute,  53. 

Statute  presaraed  to  be  constitutional,  58. 

That  municipal  ortiinauce  is  regular,  58. 
Private  officers  presumed  to  be  properly  appointed  and  to  do 
their  duty,  GO. 

That  cashier's  bond  was  approved,  CO. 

That  corporation  president  had  power  to  indorse  note,  CO. 

That  officers  of  corporation  were  properly  appointed,  CO. 

That  attorneys  for  State  had  authority  of  governor,  Gl. 

That  corporation  assents  to  suit  brought  in  its  name,  Gl. 

That  corporation's  seal  is  attached  to  contract  by  authority. 
61. 

That  oflBcer  acts  without  malice,  CI. 

That  quorum  of  members  were  present  at  meeting,  61. 
Reasons  for  the  rulings,  C1-G6. 
Business  acts,  regularity  of  presumed,  C7. 

That  written  agreement  was  signed,  67. 

That  partners  are  interested  in  equal  shares,  67. 

That  letters  are  sent  in  course  of  business,  C7. 

That  persons  doing  business  together  are  partners,  68. 

That  party  waives  defects  in  goods  by  keeping  them,  G8. 

That  a  person  is  a  partner,  68. 

That  note  is  firm  note,  68. 

That  accounts  are  received  by  attorney  for  collection,  68. 

That  account  books  of  partnership  are  correct,  68. 

That  goods  are  to  be  paid  for  on  delivery,  G8. 

That  a  person  promises  to  pay  borrowed  money,  68. 

That  a  person  has  funds  to  pay  draft  on  himself  Avhich  he 
accepts,  C8. 

That  a  person  is  engaged  by  the  month,  C8, 

That  freight  earned  l)elongs  to  owners  of  vessel,  68. 

That  goods  charged  were  delivered,  CS, 


616  INDEX. 

LAW  .LN'D  FACT  GENERALLY,  PRESUMPTIONS  OF  — Continued. 

That  one  selling  to  another  on  credit  thinks  him  solveut,  G9. 

That  a  partnership  is  solvent,  G8. 

Of  insolvenc}'  from  unsatisfied  judgments,  C9. 

And  uncollectible  debts,  09. 
That  letter  was  mailed  on  day  of  post-mark,  G9. 
That  two  signing  note  are  equally  bound,  09. 
That  letter  written  by  a  persou  is  signed  by  him,  G9. 
That  post-marked  letter  has  been  through  the  mail,  C9. 
That  building  is  attached  to  the  soil,  G9. 
That  damage  has  been  assessed,  09. 
That  deed  given  to  a  person  is  in  his  control,  69. 
That  persons  making  joint  mortgage  are  equal  owners,  69. 
That  bank-notes  are  genuine,  09. 
That  receipt  is  given  for  goods  received,  70. 
That  account  kept  by  customer  is  correct,  70. 
That  person  remaining  silent  acquiesces  iu  stated  coudition, 

70. 
That  holder  is  owner  of  note  payable  to  bearer,  70. 
Presumption  as  to  bills  and  notes,  70. 
And  as  to  money  in  war  time,  70. 
Reasons  for  these  rulings,  70-72. 
Persons  in  trade  presumed  to  know  value  of  articles  iu  the  trade,  72. 
And  their  names,  72. 
And  the  customs  of  the  trade,  72,  73. 
Services,  agreement  to  pay  for  presumed,  74. 
To  pay  medical  services  rendered,  74. 

But  not  where  parties  are  near  relatives  or  of  the  same  family, 
74. 
Illustrations,  75, 
Reasons,  75-77. 
Negotiable  paper,  presumed  to  be  regularly  negotiated  and  held,  77. 
That  holder  of  note  is  bona  fide  holder,  77,  78. 
That  note  is  transferred  on  day  due,  78. 
That  indorsement  was  made  before  note  was  due,  78. 
Reasons,  78. 
Except  when  there  is  fraud,  duress  or  illegality,  79. 
Illustrations,  79. 
Reasons,  80. 
Right,  presumption  that  act  was  done  of,  81. 
Moral  duty,  performance  of  not  presumed,  81. 

Illustrations,  81. 
Documents  presumed  to  be  regularly  executed,  82. 

That  agreement  is  stamped  as  statute  requires,  82,  83. 
That  assignment  is  properly  enrolled,  82. 
That  deed  was  sealed,  83. 
That  deed  was  delivered,  83. 


INDEX.  <)17 

LAW  AND  FACT  GENERALLY,  TRESUMPTIONS  OF  — Coutinucd. 

That  deeds  were  delivered  in  proper  order,  83,  84. 

That  mortgage  was  properly  executed,  84. 

That  deed  was  delivered  on  day  of  date,  84. 

That  consideration  was  money  value,  84. 

That  agreement  Is  In  writing,  84. 

That  deeds  were  signed  in  jtroper  order,  85. 

That  mortgage  was  executed  where  land  lies,  85. 

That  mortgage  was  paid  on  day  due,  85. 

That  land  was  properly  located,  85. 
Reasons  for  the  rulings,  85-88. 
t)atcs,  presumed  to  b*  correct,  89. 

That  letters  were  written  on  their  date,  89. 

That  bill  of  exc^inge  was  issued  on  date,  89. 

That  payment  w^s  made  on  date  of  receipt,  89. 

That  deeil  was  executed  on  its  date,  80. 

Tliat  indorsements  of  receipts  of  interest  was  made   on  their 
date,  89. 

That  assignment  Avas  executed  on  day  of  date,  80. 

That  name  was  written  on  back  of  note  at  time  of  making,  90. 

That  actioo  was  commenced  on  day  of  date  of  writ,  90. 

No  presumption  as  to  letters  between  husband  and  wife,  90. 
Reasons,  90-92. 

But  do  rot  prove  collateral  facts,  02, 

As  that  party  was  in  city  of  date  at  that  time,  92. 
Innocence  in  civil  cases  presumed,  9:3. 

Ti\at  parties  cohabiting  are  married,  03. 

That  persons  of  different  colors  living  together  arc  not  married, 
93. 

That  husband   living   with   woman  other  than  his  wife   is   di- 
vorced, 93. 

Marriage  presumed  to  legalize  acts,  93,  94. 

That  car  tracks  in  street  are  necessary,  94. 

That  visits  of  physician  were  necessary,  94. 

That  insolvent  exhibits  true  account,  94. 

That  prosecution  was  for  cause,  94. 

That  lost  decree  of  divorce  was  recorded,  95. 
Reasons  for  the  rulings,  95. 
Fraud  never  presumed,  93,  98,  439. 

That  documents  were  fairly  obtained,  98. 

That  parly  owns  land  he  conveys,  98. 

That  party  not  guilty  of  fraud,  98. 
Reasons  for  the  rule,  99. 
Fraud  may  be  inferred  from  circumstances,  100. 

Tliat  goods  were  not  sold  contrary  to  law,  101. 

That  contract  is  not  usurious,  102. 

That  act  entailing  penalty  has  not  been  done,  102. 


G18  INDEX. 

LAW  AXD  FACT  GENERALLY,  PKESUMPTIONS  OF  — Continued. 
That  seller  of  liquor  has  a  license,  102. 
That  future  tenants  Avill  not  violate  the  law,  102. 
Negligence  not  presumed,  102. 

That  fire  Tvas  notncgligent,  102. 
That  vessel  was  seaworthy,  102. 
AUter  that  boiler  which  exploded  was  defective,  102. 
That  blast  was  not  properly  covered,  103. 
That  animal  on  railroad  track  was  negligently  killed,  103. 
Marriage  is  presumed,  10-1. 
Parentage  is  presumed,  105. 

That  marriage  ceremony  was  properly  performed,  lOG. 
Presumption  that  every  person  is  legitimate,  107. 

Illustrations,  109. 
Old  rule  on  the  subject,  108. 
Pule  relaxed  in  modern  times,  109-112. 

Presumption  of  sexual  intercourse  from  proof  of  access,  114. 
Evidence  of  rumor  of  illegitimacy  insufficient,  115. 
Proof  of  access  not  conclusive,  115. 
Conduct  of  supposed  parent  towards  child  relevant,  IIG. 
That  wife  lived  in  open  adultery  relevant,  117. 
Presumption  holds  where  parties  are  living  apart  by  consent, 
117. 
AUter  vihcn  by  decree  of  court,  117. 
Declarations  of  wife  inadmissible,  118. 

Legitimacy  of  child  can  not  be  contested  by  mother  or  heirs,  118. 
Spoliator,  presumptions  against  a,  120. 

Omission  of  party  to  testify,  presumption  arises  against  him,  120. 
Of  seaman  who  had  charge  of  light  on  vessel,  121. 
Of  party  who  is  charged  with  fraud,  121. 
Refusal  to  produce  deed  on  which  party  claims,  121. 
Or  to  produce  letter  sent  to  one,  121 
Or  to  produce  book  claimed  as  private  one,  122. 
Agreement  not  produced  presumed  stamped,  122. 
Invoices  not  produced,  goods  presumed  undervalued,  122. 
Refusal  to  produce  building  plan  or  to  allow  expert  to  ex- 
amine building,  122, 
Contents  of  bottles  of  liquor  not  proven,  presumption  that 

it  was  the  cheapest  of  liquor,  122. 
Amount  of  note  not  proved,  presurrptiou  that  it  was  of  the 

smallest  denomination,  122. 
Price  of  cattle  received  of  owner  not   shown,  presumption 

that  it  was  the  highest,  !23. 
Witness  refusing  to  explain  facts  in  her  knowledge,  123. 
And  refusing  to  produce  books,  123. 

Four  out  of  five  attorneys  of  a  party  deny  a  fact,  presump- 
tion that  the  other  could  not,  123. 
Reasons,  J  ^3-134. 


INDEX.  C19 

LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF— Continued. 
As  to  annoyauce  from  passiiij^  trains,  134. 
Exceptions  wtierc  evidence  is  not  liis  power,  120,  135. 
As  wtiere  another  has  his  muniments  of  title,  135. 
Or  a  witness  is  equally  within  tlie  call  of  both  sides,  135. 
Or  there  is  uo  proof  that  he  1ms  better  evidence,  135. 
Reasons,  135-137. 
Exception  when  evidence  is  privileged,  1.17. 

As  conOdeutial  communication  between  attornc}' and  client,  137. 
Presumption    arising  from  non-production   of  evidence   does   not 
relieve  opposite  party  from  proving  his  case,  137. 
Illustrations,  137. 
Reasons, 138-140. 
Alteration,  suppression,  falsiflcation  or  manufacturing  evidence,  pre- 
sumption from,  140. 

Goldsmith  taking  stone  from  soclict  and  converting  It,  stone 

presumed  to  be  of  the  highest  value  and  water,  140. 
Party  having  part  of  stolen  diamonds  presumed  to  have  all,  141. 
Executor  altering  papers  of  testator,  141. 
Husband  suppressing  deed  of  wife,  141. 
Party  preventing   value   of   goods   being  shown   mulct    In 

highest,  141. 
Destruction  of  deed  by  claimant,  141. 
'         And  of  contract  of  sale  by  indorser,  142. 
Carrying  off  mortgaged  goods,  142. 
Destruction  of  boud.by  obligor,  142, 
Destruction  of  evidence  of  payment  by  party,  142. 
Kidnapping  of  heir  to  estate  by  claimant,  142 
Manufacturing  of  evidence  by  party  to  a  cause,  143. 
Falsity  of  seal  on  certificate,  143. 
Alterations  in  account  book  by  creditor,  143. 
Reasons,  143-148. 

Trustee  failing  to  preserve  his  vouchers,  148. 
Agent  of  candidate  destroying  his  accounts,  148. 
Concealment  of  books  by  oflicers  of  corporations,  148. 
Destruction  of  vouchers  and  invoices  by  partner,  149. 

Reasons, 148-149. 
Presumptions  in  international  law,  150-151. 
Spoliation  alone  may  defeat  claim  but  can  not  sustain  one,  152,  153. 
Presumption  against  spoliator  does  not  arise. 

1.  Where  documents  otherwise  proved,  154. 

Illustrations,  154. 

2.  Or  spoliation  open  and  for  cause,  154. 

Illustrations,  154. 
Does  not  extend  beyond  thing  taken  or  suppressed,  155. 
Presumption  is  not  conclusive,  15(!. 
Destruction  voluntarily  of  document  precludes  spoliator  from  giving 
secondary  evidence,  157. 


620  IXDEX. 

LAW  AXD  FACT  GEXERALLY,  PRESUMPTIONS  OF— Continued. 
A.  burns  up  B.'s  note  to  him,  A.  can  not  sue  B.  on  it,  157. 
Person  burning  up  letter  can  not  prove  its  contents,  157. 
Party  mutilating  paper  can  not  prove  its  contents,  157. 
Illustrations  and  reasons,  157-159. 
Unless  destruction  was  the  result  of  mistake  or  accident,  159. 
Illustrations,  159. 

Reasons,  159,  IGO. 
Continuance  of  tlaings,  presumption  of,  103. 

Possession  or  ownership  of  property  presumed  to  continue,  1C3. 

Reasons,  103. 
Non-possession  or  loss  of  property  presumed  to  continue,  153, 
104. 
Illustrations,  104. 
Debts  presumed  to  continue,  103,  105. 
Illustrations,  105. 
Reasons,  105. 
Other  cases  of  continuance,  166. 

That  goods  in  carrier's  hands  remain  in  good  order,  166. 
That  vessel  continues  seaworthy,  106. 
That  party  continues  to  possess  money,  100. 
That  decree  in  chancery  continues  in  force,  107. 
That  custom  continues  in  force,  107. 
Reasons,  167-172. 
Domicil,  residence  or  non-residence  presumed  to  continue,  172. 
Illustrations,  172. 
Reasons,  173. 
Solvency  or  insolvency  presumed  to  continue,  172. 

Illustrations,  173,  174. 
Infancy  presumed  to  continue,  172. 
Illustrations,  174. 
Reasons,  174. 
Partnership  presumed  to  continue,  172. 

Illustrations,  175. 
Office,  holding  of,  presumed  to  coutiuue,  172. 

Illustrations,  175. 
Authority  to  do  an  act  presumed-to  coutiuue,  172. 

Illustrations,  175. 
Other  cases  of  continuance,  175. 

That  parties  live  in  same  relation,  175. 

That  a  person  continues  a  stockholder,  175. 

That  state  of  peace  continues  in  country,  176. 

That  state  of  war  continues  in  country,  170. 

That  public  treaty  is  still  in  force,  170. 

That  same  state  of  government  still  exists,  170. 

That  corporation  still  exists,  170. 

That  illicit  iutercourse  continues  between  parties,  176. 


INDEX.  621 

LAW  AND  FACT  GENERALLY,  rRESUMPTIONS  OF  — Continued. 
That  person's  veracity  is  still  good,  17G. 
Tiiat  woman  continues  unmarried,  17G. 
That  common  law  continues  in  force,  176. 
That  a  person  di.sal)led  continues  so,  17G. 
That  judge  continues  interested  in  property,  176. 
That  execution  remains  in  sheriff's  olllce,  177. 
Reasons,  177,  178. 
Sanity  or  insanity  presumed  to  continue,  179. 

Unless  temporar)',  179. 
Character  and  habit  of  person  presumed  to  continue,  180. 
That  a  gambler  continues  a  gambler,  180. 
That  a  person's  character  continues  bad,  181. 
Reasons,  181,  182. 
Acts  done  in  one  case  do  not  prove  similar  act  done  in  another,  182. 
That  person  enters  into  contract  with  A.  no  proof  that  he  did 

so  withB.,  182. 
That  person  was  negligent  in  one  case  no  proof  that  he  was  so 

in  another,  182. 
That  sale  to  A.  was  made  on  condition  no  proof  that  sale  to  B. 

was  made  on  like  condition,  182. 
That  A.  sold  diseased  hog,  no  proof  that  he  sold  diseased  beef, 

182. 
That  credit  was  given  to  A.  once,  no  proof  that  it  was  given  to 

A.  again,  182. 
That  some  of  A.'s  servants  were  paid,  no  proof  that  others  were, 

183. 
That  A.  promised  to  pay  B.'s  debt  no  proof  that  he  promised  to 
pay  C.'s,  183. 
Reasons,  183-184. 
But  person  presumed  to  follow  his  habit,  184. 
Illustrations,  184-18G. 
Reasons,  180-187. 
Future  continuance  not  presumed,  187. 
Illustrations,  188. 
Reasons, 188. 
Admission  made  docs  not  extend  in  futuro,  189. 
Illustrations,  189. 

Reasons, 189-100. 
Presumption  is  not  retrospective,  190. 
Illustrations,  190. 
Reasons, 190-101. 
Presumption  of  continuance  weaker  than  presumption  of  innocence, 

101. 
Life,  love  of  presumed,  192. 

A  person  found  dead  presumed  to  have  accidentally  died,  192. 
Suicide  not  presumed,  192. 
Reasons,  192, 193. 


622  INDEX. 

LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF  — Continued.   • 
One  proved  alive  presumed  to  continue  alive,  193. 
Illustrations,  193. 

Reasons, 194-196. 
Death  may  be  proved  by  reputation,  197. 
Or  by  hearsay,  197. 

Or  by  fact  inconsistent  with  continuance  of  life,  197. 
Illustrations,  197. 
Unmarried  person  presumed  to  have  died  childless,  197. 

Aliter  as  to  married  person,  197. 
Presumption  that  person  left  heir,  198. 
Illustrations,  198. 
Reasons,  198-199. 
Death,  presumption  of,  200. 

Absentee  for  seven  years  presumed  to  have  died  at  end  of  that 
term,  200. 
Illustrations,  200-202. 
English  rule  different,  201,  note. 

Reasons,  202-211. 
Rule  in  the  civil  law,  211.  , 

What  is  an  "  absentee,"  212. 
Illustrations,  212-213. 
Reasons,  213-2U. 
"Where  removal  is  temporary,  absence  alone  presumes  death,  212. 

Illustrations,  214. 
But  when  permanent,  inquiry  at  new  abode  must  be  proved,  212. 
Illustrations,  214. 
Reasons,  215. 
"Persons  who  would  naturally  hear  from  him"  include  relatives  and 
strangers,  215. 
Illustrations,  215. 
Reasons,  215. 
What  is  meant  by  "  not  being  heard  of,"  21G. 
Illustrations,  216. 

Reasons,  216-221. 
What  is  absentee's  "residence,  home  or  domicil,"  222, 
Illustrations,  222. 
Reasons,  222. 
Presumption  arises  that  party  has  died  within  seven  years  — 

1.  When  last  heard  of  he  was  in  desperate  health,  222. 

Illustrations,  222. 
Reasons,  223. 

2.  Or  within  that  time  he  embarked  on  vessel  not  since  heard 
of  and  overdue,  223. 

Illustrations,  223,  224. 
Reasons,  225-230. 

3.  Or  within  that  time  he  encountered  a  specific  peril,  230. 

Illustrations,  2o0. 


INDEX.  G23 

LAW  AXD  FxVCT  GENERALLY,  TRESUMPTIONS  OF —Continued. 

Specific  peril  does  not  mean  ordinary  perils  of  navigation, 
230. 
But  means  an  unusual  or  extraordinary  peril,  230,  232. 
4,  Or    his  habits,  relations  or  necessities  would  have   necessi- 
tated liis  communicating  with  his  friends,  233. 
Illustration.s,  233,  237. 
Presumption  of  death  at  end  of  seven  years  does  not  arise  — 

1.  Where  it  is  improbable  party  even  if  alive  would  have  been 
heard  of,  237. 

Illustrations,  237. 

Reasons,  237-239. 

2.  Where  he  is  mentioned  as  alive  in  subsequent  judicial  pro- 
ceedings, 237. 

Illustrations,  230. 
Survivorship,  presumption  of,  240. 

No  presumptiou  of  survivorship  as  to  victims  of  common  calam- 
ity, 240. 
Illustrations,  241-243. 
Reasons,  243-246. 
Exceptions,  24G. 
niustrations,  240,  247. 
Identity,  presumption  of,  248. 

Identity  of  name  raises  presumption  of  identity  of  person  — 

1.  Where  there  is  similarity  of  residence,  248. 

Illustrations,  250. 

2.  When  there  is  similarity  of  trade,  248. 

Illustrations,  250. 
Reasons,  251. 

3.  When  there  is  similarity  of  circumstances,  243. 

Illustrations,  250. 

4.  Wliere  name  is  an  unusual  one,  248. 

Illustrations,  252. 

Reasons,  253,  254. 
No  presumption  where  name  is  a  common  one  or  there  are  sev- 
eral of  same  name  at  place,  248. 
Illustrations,  254. 
Family  name  and  initials  the  same  raises   no  presumption  of 
identity,  255. 

Illustrations,  255. 
Reasons,  255. 
Two  persons  of  same  name  occupy  different  positions  and  rela- 
tions—  presumption  is  that  they  are  different  persons,  250. 
IlUistrations,  250. 
Initials  preceding  name,  construction  of,  257. 
When  interest  Is  claimed,  identity  of  name  insufficient,  257. 
Illustrations,  257. 


624  IXDEX. 

LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF  — Continued. 

Father  and  son  or  two  persons  of  same  name,  presumption  that 
name  means  eldest,  258. 
Illustrations,  258. 

Reasons,  259,  200. 
Aliter  as  to  mother  and  daughter,  260. 
Identity  of  things  presumed  from  circumstances,  2G1. 
Illustrations,  2G1. 
Intent,  presumptions  of,  202. 

Party  presumed  to  intend  natural  consequences  of  his  acts,  2G2. 
That  libeller  intended  to  injure  libelled,  2G2. 
That  party  selling  bad  bread  intended  it  to  be  eaten,  202. 
That  party  conveying  to  creditor  intended  to  prefer  him, 

262. 
That  person  stopping  iu  house   of  ill-fame  has   intercourse, 

262. 
That  person  removes  to  another]  State  to  obtain   divorce, 

203. 
That  person  preferring  creditor  intended  to,  263. 
Reasons,  263-264. 
Party  presumed  to  intend  legal  consequences  of  his  acts,  202. 
That  persons  signing  "  as  trustees  "  intended  to  bind  them- 
selves personally,  264. 
That  persons  giving  receipt  under  seal   intended  it  to  be 
conclusive,  264. 
Aliter  as  to  receipt  not  under  seal,  264. 
That  one  forging  another's  name  intended  to  defraud  him,  264. 
That  person  firing  building  intended  to  destroy  it,  204. 
That  person  giving  note  intends  it  to  be  paid  in  legal  cur- 
rency, 264. 

Reasons,  265-206. 
Act  criminal  per  se  presumed  to  be  criminally  intended,  266. 
Illustrations,  266. 

Reasons,  266-27 1. 
But  where  specific  intent  required  it  must  be  proved,  271, 
Illustrations,  271. 
Reasons,  271. 
Intent  presumed  from  acts  in  absence  of  declarations,  272. 
Illustrations,  272. 

Reasons,  272-274 
Unless  party  is  physically  or  mentally  unable,  272. 
Illustrations,  274. 

As  when  drunlvcn,  274. 
Reasons,  274-275. 
Person  presumed  to  intend  to  do  what  is  within  his  right  and 
power,  and  not  what  is  beyond  them,  276. 
Illustrations,  276,  277. 
Reasons,  277-278. 


INDEX.  G25 

LAW  AXB  FACT  GENERALLY,  rRESUMPTTONS  OF— Continued. 
Nature,  presumptions  from  tlie  course  of,  27'.). 

Ttiat  boy  under  fourteen  c:in  not  commit  crime,  27!). 

Tliat  woman  committin;^  crime  or  tort  in  presence  of  husband 

is  coerced  by  him,  279. 
That  person  hears  statement  in  his  presence,  279. 
Unless  ho  is  asleep  or  intoxicated,  279,  note. 
Tlmt  husband  is  head  of  his  family,  279. 
That  deed  to  wife  is  in  custody  of  husband,  279. 
That  money  advanced  by  parent  to  child  is  a  loan,  279. 
That    improvements  made  ou  wife's  laud  by  husband  are  a  gift 

to  her,  280. 
That  wife  buys  articles  for  home  by  consent  of  husband,  280. 
That  person  is  sane,  2S0. 
Reasons,  280-302. 

Other  illustrations,  302. 
That  woman  beyond  certain  age   is  incapable  of  child  bearing 
302,  303. 
Person  presumed  to  act  in  his  own  interest,  303. 
That  person  accepts  estates  devised  to  him,  303. 

Or  conveyed  to  him,  303. 
That  charter  is  accepted  by  grantee,  304. 

Tliat  wife  elects  to  take  provision  most  beneficial  to  her,  304. 
That  person  assents  to  arrangement  for  his  benefit,  304. 
That  creditor  assents  to  assignment,  304. 
That  a  debt  is  paid  rather  than  a  loan  made,  304. 
That  legacy  to  creditor  is  payment  not  a  loan,  304. 
That  property  given  by  parent  to  child  is  an  advancement,  304. 
That  money  given  to  another  is  a  loan  rather  than  a  gift,  305. 
That  A.  does  not  consent  to  arrangement  not  to  his  interest, 

305. 
That  servant  performs  services  properly,  305. 
Reasons,  305-307. 
Presumption  of  payment  and  discharge  of  obligations,  308. 
Bonds  presumed  paid  after  twenty  years,  308. 
Illustrations,  315. 
Reasons,  315. 
Mortgages  presumed  paid  after  twenty  years,  303. 
Illustrations,  31G. 
Reasons,  317-319. 
Legacies  presumed  paid  after  twenty  years,  308. 
Illustrations,  319. 
Reasons,  319. 
Taxes  presumed  paid  after  twenty  years,  303. 

Illustrations,  3l'0. 
Trust  presumed  executed  after  twenty  years,  303. 
Illustrations,  320. 

40 


Q2Q  INDEX. 

LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF  — Continued. 
Covenant  presumed  performed  after  twenty  years,  308. 
Illustrations,  320. 
Reasons,  321. 
Presumption  of  payment  docs  not  arise  from  less  than  twenty  years, 
322. 
Unless  in  conjunction  witli  ottier  circumstances,  322. 
Illustrations,  323. 
Reasons,  323-327 
Presumption  from  lapse  of  time  may  bo  rebutted,  327. 
Illustrations,  327. 

Reasons,  327-330. 
Statute  of  limitations  can  not  be  sliortened  by  lapse  of  time  alone, 
327. 
Illustrations,  330. 

Reasons,  330-332. 
Presumption  of  payment  may  be  rebutted,  how  — 

1.  By  acknowledgment  of  debt  by  debtor,  333. 

Illustrations,  333. 

Reasons,  334,  33G. 

2.  By  part  payment,  333. 

Illustrations,  336. 
8.  By  known  insolvency  of  debtor,  333. 
Illustrations,  336. 

Reasons,  337-340. 

4.  Or  incapacity  of  debtor,  333. 

Illustrations,  340. 

5.  Or  by  relation  of  the  parties,  333. 

Illustrations,  340. 
Reasons, 341. 

6.  Or  by  situation  of  the  parties,  333. 

Illustrations,  342. 

7.  Or  by  intention  of  the  parties,  333. 

Illustrations,  342. 
Reasons,  343. 

8.  Or  by  other  facts  explaining  the  delay,  333. 
Illustrations,  343. 

Presumption  of  payment  other  than   by  lapse  of  time   will  arise 
from  — 

1.  Production  of  receipt  from  creditor,  344. 

Illustrations,  344. 

Reasons,  344-346. 

2.  Possession  by  debtor  of  obligation,  344. 

Illustrations,  346 

Reasons,  347-349. 

3.  Cancellation  of  obligation,  344. 

Illustrations,  34!). 
Reasons,  448-350. 


INDEX.  G27 

LAW  AND  FACT  GENERALLY,  rRESU>rPTIONS  OF  — Continued. 

4.  Payment  of  later  debt,  344. 

Illustrations,  350. 

5.  Passing  of  money  after  debt  due,  344. 

Illustrations,  351. 

6.  Custom  of  trade,  344. 

Illustrations,  3o2. 

7.  Other  circumstances,  344. 
Illustrations,  353,  355. 

Presumption  does  not  arise  — 

1.  When  debtor  might  have  gotobligation  without  paying  it,  355. 

Illustrations,  355. 

2.  Where  debt  paid  was  not  debtor's  alone,  355. 

Illustrations,  350. 
Presumption  of    payment  is    stronger    than  presumption  of    con- 
tinuance, 85G. 
But  weaker  than  presumption  of  innocence,  35G. 
Illustrations,  35(i. 
Reasons,  357. 
Foreign  laws,  presumption  as  to,  358. 

Law  of  forum  presumed  to  be  the  law  of  foreign  state,  358. 
Illustrations,  358-300. 
Reasons,  3C0-3(;5. 
Acts  malum  in  se  presumed  to  be  crimes  in  foreign  country,  3C5. 

Illustrations,  305. 
No  presumption  of  identity  of  law  as  to  country  not  subject  to  com- 
mon law,  306. 
Illustrations,  3G6. 

Reasons,  30G-3G9. 
Or  tribe  or  nation  uncivilized,  3GG. 
Illustrations,  30'J. 
Constructed  of  an  adopted  statute,  3G9. 

Illustrations,  300. 
"  Law  "  means  common  and  not  statute  law,  370. 
Illustrations,  370,  372. 

Reasons,  370,  373-370. 
But  not  rule  of  common  law  which  has  exceptions,  370. 
Illustrations,  379. 
Alterations  presumed  to  be  made  before  execution  of  instrument, 
381. 

Illustrations,  381. 

Reasons,  382-38G. 
Exceptions,  387-380. 
When  this  presumption  docs  not  obtain  — 

1.  Where  alteration  is  in  different  hand,  389. 
Illustrations,  300. 
Reasons,  390-302. 


Q-2S  INDEX. 

LAW  AND  FACT  GENERALLY,  PRESUIMPTIONS  OF  —  Continued. 

2.  Or  in  difforeut  ink,  389. 

Illustrations,  393. 

3.  Or  is  in  interest  of  party  setting  it  up,  389. 

Illustrations,  39-t. 
Reasons,  394-396. 

4.  Or  is  suspicious  ou  its  face,  389. 

Illustrations,  39G. 

5.  Or  execution  of  instrument  is  denied  under  oath,  389. 

Illustrations,  397. 
Reasons,  397-400. 
Real  property,  presumptions  in  the  law  of,  403. 
Possession  and  lapse  of  time,  presumptions  arising  from,  403. 

Possession  of  thirty  years  raises  presumption  of  grant  from 

Crown,  404. 
Grant  of  fisbing  dam  presumed  after  sixty  years,  404. 
Existence  of  link  in  title  presumed  from  time,  404. 
And  conveyance  pursuant  to  agreement,  404. 
And  grant  of  incorporeal  hereditament,  405. 
And  grant  of  easement,  405. 
And  ouster  of  co-tenant,  405. 
And  payment  of  dower,  405. 
And  dedication  of  road,  405. 
Reasons,  405-417. 
Act  of  Legislature,  existence  of  presumed  from  lapse  of  time,  417. 
No  presumption  of  grant  where  none  exists  to  make  it,  417. 
Illustrations,  417. 
Reasons,  417-419. 
Owner  and  possessor  presumed  to  have  good  title,  419. 

Possession  of  deed  raises  presumption  of  delivery,  419. 

So  from  lapse  of  time,  419. 
Possession  of  land  by  grantor  presumed  to  be  for  breach  of  con- 
dition, 419. 
Administration  presumed  from  division  of  property,  419. 
Regularity  of  sale  under  power,  from  lapse  of  time,  419. 
And  power  of  agent  to  make  it,  419. 
Persona,l  property,  possession  of  raises  presumption  of  ownership, 

420. 
So  these  presumed  owners  — 

Person  in  possession  of  vessel,  420. 
Of  sheep,  420. 
Of  bonds,  420, 
Of  note,  420. 
Of  calf,  420. 

Shipping  property  by  carrier,  420. 
Reasons,  420-429. 
Criminal  cases,  presumptions  in,  433. 


INDEX.  629 

LAW  AND  FACT  GENERALLY,  PUESUMrTIONS  OF  — CoDtiuued. 
Three  famous  things  In  law,  433. 

The  presumption  of  innocence,  433. 
The  reasonable  doubt,  434. 
The  burden  of  proof,  434. 
Innocent,  person  charged  with  crime  presumed,  433. 

That  two  of  different  sexes  living  together  and  cohabiting  are 
married,  433. 
Aliter  if  marriage  between  them  is  prohibited,  434. 
From  taking  thing  no  presumption  of  theft,  435. 
Person  marrying  again,  first  husband  or  wife  presumed  dead 

or  divorced,  435. 
That  marriage  was  properly  solemnized,  435. 
That  notice  as  required  by  statute  was  given,  43G. 
That  works,  otherwise  a  nuisance,  are  necessary,  43G. 
That  physician's  visits  are  necessary,  43G. 
That  person  holding  office  has  qualified,  436. 
That  sworn  account  is  true,  43G. 
That  prosecution  is  for  cause  and  not  malicious,  436. 
That  statute  is  not  violated,  43G. 
Other  illustrations,  438. 
Reasons,  437-439. 
Fruud  never  presumed,  439. 
Illustrations,  430. 

That  sale  was  not  fraudulent,  439. 
That  exchange  of  property  was  bona  fide,  440. 
That  party  did  not  misappropriate  papers,  440. 
That  mortgage  is  valid,  440. 
That  administrator  has  made  proper  return,  440. 
Reasons,  440-442. 
Good  character  presumed,  442. 

Presumption  of  innocence  not  taken  away  hy  prima  facie  case,  445. 
Illustrations,  445. 
Reasons,  445-447. 
Presumption  of  inuoctnce  prevails    over  presumption  of  continu- 
ance of  life,  447. 
Illustrations,  440. 
Reasons, 448. 
Presumption  of  innocence  prevails  over  presumption  of  continuance 
of  things  generally,  447. 
Illustrations,  449. 
Reasons,  450. 

Exception,  450. 
Presumption  of  innocence  prevails  over  presumption  of  marriage,  447. 

Illustrations.  451. 
Presumption  of  innocence  prevails  over  presumption  of  chastity,  447. 
Illustrations,  451. 
Reasons,  452. 


G30  INDEX. 

LAW  AND  FACT  GEXERALLY,  PKESUMPTIOXS  OF  — Continued. 
Presumption  of  iuuoceuce  weaker  ttiau  presumption  of  liuowledge 
of  law,  447. 
Illustrations,  453. 
Reasons,  454-457. 
Presumption  of  innocence  weaker  than  presumption  of  sanity,  447. 
Illustrations,  457. 
Reasons,  458. 
The  burden  of  proof  of  insanity,  459. 
Presumption  of  innocence  strengthened  by  relation  of  parties,  4C0. 

As  that  murdered  person  is  wife  of  suspected  murderer,  400. 
But  presumption  of  innocence  overcome  by  finding  of  indictment 
except  for  purpose  of  trial,  4G0. 
Illustration,  4C0. 
Qualification  to  do  act  presumed,  401. 

Therefore  these  presumptions  arise  — 

That  parties  living  together  as  husband  and  wife  are  mar- 
ried, 401. 
That  consent  to  sale  of  liquor  to  prohibited  party  has  been 

given, 401. 
That  party  has  consent  to  do  act  requiring  consent,  461. 
That  oflScer  made  report  required  by  statute,  401. 
Reasons,  402-405. 
Aliter  where  proof  is  peculiarly  in  possession  of  defendant,  4G1. 
As  that  bailiff  has  public  license  to  do  act,  465. 
Other  illustrations,  405. 
Reasons,  405. 
Even  though  it  may  involve  defendant  in  proving  his  innocence, 
461. 
Illustration,  400. 
Person  presumed  to  intend  natural  consequences  of  his  acts,  467. 
Illustrations,  407. 
Reasons,  468. 
Where  act  criminal  per  se  criminal  intent  presumed,  4G9. 
Illustrations,  469. 

Reasons,  469-472. 
Unless  specific  intent  required  by  statute,  472. 
Illustration,  472. 
Reasons,  473. 

Dr.  Wharton's  illustrations,  474. 
Possession  may  overthrow  presumption  of  innocence,  478. 

Illustrations,  478-481. 
Knowledge  may  overthrow  presumption  of  innocence,  478. 

Illustrations,  478-481. 
Motive  may  overthrow  presumption  of  innocence,  478. 

Illustrations,  478-481. 
Other  crime  tlian  that  charged  can  not  be  proved  against  prisoner,  481. 
Illustrations,  481-483. 


INDEX. 


G31 


LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF  — Continued. 

As  that  prisoner  had  teudeucy  to  coininit  crime  of  kind  charged, 

483. 
That  person  indicted  for  raping  T.  had  raped  L.,  483. 
That  person  indicted  for   poisoning   his  wife  liad  been  intimate 

with  woman  whose  husband  had  been  poisoned,  483. 
That  one  indicted  for  riot  had  participated  in  a  previous  riot, 

483. 
That  person  indicted  for  forging  A.'s  name  liad  forged  B.'s,  483. 
That  one  indicted  for  hiring  A.  to  steal  had  hired  him  to  forge, 

483. 
That  person  indicted  for  stealing  from  B.  had  assaulted  him, 

483. 
That  person  indicted  for  stealing  a  horse  had  stolen  money,  483. 
That  person  charged  with  performing  abortion  on  A.  had  done  so 

onB.,  483. 
That  person  charged  with  murder  of  illegitimate  child  had  com- 
mitted rape,  484. 
That  woman  charged  with  killing  one  child  had  killed  another, 
484. 

Reasons,  484,  485. 
Other  instances,  48G. 
To  prove  knowledge  or  intent,  another  crime  may  be  shown,  487. 
Illustrations,  487. 
Reasons,  487,488. 
To  prove  motive,  another  crime  may  be  shown,  487. 

Illustrations,  488. 
To  prove  that  crime  was  not  accidental,    separate  crime   may  be 
shown,  488. 

Illustrations,  489. 
Reasons,  490. 
lies  gestce  may  be  proved  though  another  crime,  490. 
Illustrations,  490. 

Reasons,  491,  492. 
Guilt,  presumptions  of,  493-534. 

Motive,  guilt  presumed  from,  493. 
Methods  of  showing  motive,  495. 
Desire  of  gain,  495. 
Illustrations,  49C. 
Reasons,  49G-498. 
Gratification  of  passion,  493. 
Illustrations,  498. 

Reasons,  499-505. 
Preservation  of  reputation,  495. 
Illustrations,  505. 
Opportunity  raises  presumption  of  guilt,  50G. 
Illustrations,  500. 


G32  INDEX. 

LAW  AND  FACT  GENEEALLY,  PRESUMPTIONS  OF  — Continued. 
Unless  another  had  better  opportunity,  60G. 
Illustrations,  606. 
Former  attempt  raises  presumption,  507. 
Illustrations,  507. 
Reasons,  508. 
Preparations  raise  presumption,  608. 
To  accomplish  crime,  508. 

Illustrations,  508. 
To  prevent  discovery,  503. 

Illustrations,,  50'J. 
To  aid  escape,  508. 

Illustrations,  509. 
To  avert  suspicion,  508. 
Illustrations,  509. 
Reasons,  510. 
Aliter  where  preparations  innocent,  610. 

Illustrations,  610. 
Or  for  another  crime,  510. 

Illustrations,  611. 
Or  crime  frustrated  or  abandoned,  610. 
Illustrations,  611. 
Threats  raise  presumption  of  guilt,  511. 
Illustrations,  511. 
Reasons,  512. 
Aliter  Avhen  another  may  have  executed  them,  512. 
Illustrations,  513. 
Possession  of  means  of  committing  crime  raises  presumption,  513. 
Illustrations,  613. 
Reasons,  614. 
Varies  as  to  occupation,  character,  or  sex  of  prisoner,  613. 
Illustrations,  515. 
Possession  of  fruits  of  crime  raises  presumption,  515. 
Illustrations,  516. 
Reasons,  516. 
Recent  possession  in  larceny  or  robbery,  518. 
Illustrations,  518. 

Reasons,  619-522. 
Reasonable  explanation  of  possession  overthrows  presump- 
tion, 522. 
Illustrations,  522. 
Reasons,  622. 
Unless  explanation  inconsistent,  522. 
Illustrations,  623. 
Reasons,  523. 
What  is  or  is  not  "recent,"  624. 
Kind  of  property  a  test,  624. 


INDEX.  C33 

LAW  AND  FACT  GENERALLY,  TRESUMrTIONS  OF  — Coulinued. 
Illustrations,  525. 

Reasons,  52(;-529. 
Change  in  life  and  circumstances  of  prisoner,  520. 

Illustrations,  629. 
False  or  contradictory  accounts  by  prisoner,  530. 
Illustrations,  630. 

Reasons,  531-533. 
Attempt  to  tiiwart  investigation,  633. 

Illustrations,  533. 
Fear  raises  presumption  of  guilt,  534. 
Illustrations,  53-t. 
,  Reasons,  534-53G. 

Aliter  ■when  fear  may  be  on  account  of  another  crime,  53-t. 
Illustrations,  63(;. 
Flight  raises  presumption  of  guilt,  537. 
Illustrations,  637. 
Reasons,  637. 
Attempts  to  escape  raise  presumption,  537. 
Illusirations,  537. 
Reasons,  538. 
Aliter  ^vhen  it  is  for  another  crime,  537. 
Illustrations,  539. 
Destruction  of  evidence  raises  presumption,  539. 

Illustrations,  641. 
Concealment  of  evidence,  639. 

Illustrations,  641. 
Fabrication  of  evidence,  539. 
Illustrations,  542. 
Reasons,  543. 
Silence  -n-heu  interrogated  raises  presumption,  545. 
Illustrations,  545. 
Reasons,  546. 
Unless  in  judicial  interrogation,  545. 
Illustrations,  549. 
Reasons,  649. 
Failure  to  produce  evidence  raises  presumption,  549. 
Illustrations,  651. 
Reasons,  551. 
Prisoner  declining  to  testify  in  his  own  behalf,  651. 
Rules  as  to  presumptions,  55(j-5'J0. 
Definition  of  "presumption,"  556. 
Definition  of  "presumption  of  law,"  556. 
Definition  of  presumption  of  fact,  55G. 
Illustrations,  559-5C0. 
Reasons,  660-509. 
Presumption  must  bo  based  on  fact  and  not  on  inference,  5C9. 
Illustrations,  5C9. 
Reasons,  670-575. 


G34  IXDEX. 

LAW  AND  FACT  GENERALLY,  PRESUMPTIONS  OF  — Contiuuecl. 
Presnmptiou  can  uot  contradict  facts,  57G. 

Illustrations,  576. 
Presumptions  are  not  continuous,  579. 
Illustrations,  579. 
Reasons,  579. 
Presumptions  are  not  retroactive,  579. 
Illustrations,  580. 
Reasons,  581. 
Conflicting  presumptions,  582-590. 
Of  payment  and  continuance,  582. 

Illustrations,  582. 
Of  innocence  and  payment,  582.  , 

Illustrations,  582. 
Reasons,  582. 
Of  innocence  and  continuance  of  life,  582. 
Illustrations,  583. 
Reasons,  584. 
Of  innocence  and  continuance  of  things,  582. 
Illustrations,  585. 
Reasons,  585. 
Of  innocence  and  marriage,  582. 

Illustrations,  587. 
Of  innocence  and  chastity,  582. 
Illustrations,  587. 
Reasons,  587. 
Of  knowledge  of  law  and  innocence,  582. 

Illustrations,  589. 
Of  sanity  and  innocence,  582. 
Illustrations,  589. 

LAW,  KNOWLEDGE  OF. 

See   ItXOWLEDGE. 

LEGACIES. 

Presumed  paid  after  twenty  years,  808. 
Illustrations,  319. 
Reasons,  319. 

LEGISLATURE. 

Legislature  presumed  to  have  acted  properly,  58. 
That  bill  was  passed  constitutionally,  58. 
That  verbal  changes  in  bill  were  authorized,  58. 
That  Legislature  intended  to  omit  words  in  statute,  58. 
Statute  presumed  to  be  constitutional,  58. 
That  municipal  ordinance  is  regular,  58. 
Act  of  Legislature,  existence  of,   presumed  from  lapse    of  time, 

417. 
No  presumption  of  grant  where  none  exists  to  make  it,  417. 
Illustrations,  417. 
Reasons,  417-419. 


IXDEX.  C35 

LEGITIMACY. 

rresmiiption  that  ever)' person  is  legitimate,  107. 

Illustrations,  lO'J. 
Old  rule  on  the  subject,  108, 
Rule  relaxed  in  modern  times,  109-112. 

Presumption  of  sexual  intercourse  from  proof  of  access,  114. 
Evidence  of  rumor  of  illegitimacy  iusuUicieut,  115. 
Proof  of  access  not  conclusive,  115. 
Conduct  of  supposed  parent  towards  child  relevant,  IIC. 
That  -wife  lived  in  open  adultery  relevant,  117. 
Presumption  holds  where  parties  are  living  apart  by  consent, 
117. 

Aliter  when  by  decree  of  court,  117. 
Declarations  of  A\ife  inadmissible,  118. 
Legitimacy  of  child  can  not  be  contested  by  mother  or  heirs,  113. 

LETTERS. 
See  CucKSE  of  Business. 

LIBEL. 

See  IXTEXT. 

LIFE. 
See  Death;  ScrR\^voRS^IP. 
Love  of  life  presumed,  192, 

A  person  found  dead  presumed  to  have  accidently  died.  192. 
Suicide  not  presumed,  192. 

Reasons,  192, 193. 
One  proved  alive  presumed  to  continue  alive,  193. 
Illustrations,  193. 
Reasons,  19i-196. 

LITE,  CHANGE  IN. 
See  Habits. 

LIMITATIONS. 
See  PAyMI:^•T. 

LOAN. 

See  INTEREST. 

MARRIAGE. 
See  INNOCEXCE  (Ch'il  Cases). 
Presumption  of,  105. 

That  marriage  ceremony  was  properly  performed,  100. 

MEANS  OF  COMMITTING  CRIME. 

Possession  of  means  of  committing  crime  raises  presumption,  513. 
Illustrations,  513. 
Reasons,  51  •4. 
Varies  as  to  occupation,  character,  or  sex  of  prisoner,  513. 
Illustrations,  515. 


636  INDEX. 

MORAL  DUTY. 

Performance  of,  not  presumed,  81. 

MORTGAGES. 
See  Course  of  Business;  Documents. 
Presumed  paid  after  twenty  years,  308. 
Illustrations,  316. 
Reasons,  317-319. 

MOTIVE. 

May  overthrow  presumption  of  innocence,  478. 

Illustrations,  478—181. 
To  prove  motive,  another  crime  may  be  shown,  487. 
Illustrations,  488. 
Guilt  presumed  from,  493. 
Methods  of  showing  motive,  495. 
Desire  of  gain,  495. 
Illustrations,  496. 
Reasons, 496-498. 
Gratification  of  passion,  495. 
Illustrations,  498. 
Reasons,  499-505, 
Preservation  of  reputation,  495. 
Illustrations,  605. 

NAMES. 
See  Identity. 

NATURE,  COURSE  OF. 

Life,  love  of  presumed,  192. 

A  person  found  dead  presumed  to  have  accidentally  died,  192. 
Suicide  not  presumed,  192. 
Reasons,  192,  193. 
Nature,  presumptions  from  the  course  of,  279. 

That  boy  under  fourteen  can  not  commit  crime,  279. 

That  woman  committing  crime  or  tort  in  presence  of  husband 

is  coerced  by  him,  279 
That  person  hears  statement  in  his  piesence,  279. 
Unless  he  is  asleep  or  intoxicated,  279,  note. 
That  husband  is  head  of  his  family,  279. 
That  deed  to  wife  is  in  custody  of  husband,  279. 
That  money  advanced  by  parent  to  child  is  a  loan,  279. 
That  improvements  made  ou  wife's  land  by  husband  are  a  gift 

to  her,  280. 
That  wife  buj's  articles  for  home  by  consent  of  husband,  280. 
That  person  is  sane,  280. 
Reasons,  280-302. 

Other  illustrations,  302. 
That  woman  beyond  certain  age  is  incapable  of  child  bearing, 
302,  303. 


INDEX.  C37 

NATURE,  COITRSE  OF— X^ontinued. 

Person  presumed  to  act  iu  his  own  interest,  303. 
That  person  accepts  estates  devised  to  him,  303. 
Or  conveyed  to  him,  303. 
That  charter  is  accepted  by  j^rantee,  30-t. 

That  wife  elects  to  take  provision  most  beneficial  to  her,  304. 
That  person  assents  to  arrangement  for  his  benefit,  304. 
That  creditor  assents  to  assignment,  304. 
That  a  debt  is  paid  rather  tlian  a  loan  made,  304. 
That  legacy  to  creditor  is  payment  not  a  loan,  304. 
That  property  given  by  parent  to  child  is  an  advancement,  304. 
That  money  given  to  anotlier  is  a  loan  rather  than  a  gift,  305. 
That  A.  does  not  consent  to  arrangement  not  to  his  interest,  305. 
That  servant  performs  services  properly,  305. 
Reasons,  305-307. 

NECESSITY. 
See  I>rNOCE>XE  (^Civil  Cases.) 

NEGLIGENCE. 

Negligence  not  presumed,  102. 

That  fire  was  not  negligent,  102. 

That  vessel  was  seaworthy,  102. 

Alitcr,  that  boiler  which  exploded  was  defective,  102. 

That  blast  was  not  properly  covered,  103. 

That  animal  on  railroad  track  was  negligently  killed,  103. 

NEGOTIABLE  PAPER. 
See  Course  of  Business. 
Negotiable  paper,  presumed  to  be  regularly  negotiated  and  held,  77. 
That  holder  of  note  is  bona  fide  holder,  77,  78. 
That  note  is  transferred  on  day  due,  78. 
That  indorsement  was  made  before  note  was  due,  78. 
Reasons,  78. 
Except  when  there  is  fraud,  duress  or  illegality,  79. 
Illustrations,  79, 
Reasons,  80. 

NON-RESIDENCE. 
See  DosuciL. 

. NOTARY. 

See  Official  Acts. 

OFFICERS. 
See  also  Offical  Acts, 
Private  officers  presumed  to  be  properly  appointed  and  to  do  their 
duty,  CO. 
That  cashier's  bond  was  approved,  60. 
That  corporation  president  had  power  to  indorse  note,  60. 
That  officers  of  corporation  were  properly  appointed,  00. 


638  INDEX. 

OFFICERS  —  Coutinued. 

That  attorneys  for  State  had  authority  of  Governor,  Gl. 
That  corporation  assents  to  suit  brought  in  its  name,  61. 
That  corporation's  seal  is  attached  to  contract  by  authority, 

61. 
That  officer  acts  without  malice,  01. 
That  quorum  of  members  were  present  at  meeting,  CI. 
Reasons  for  rulings,  61-66. 
Office,  holding  of,  presumed  to  continue,  172. 
Illustrations,  175. 

OFFICIAL  ACTS. 
See  also  Officers. 
Official  authority,  regularity  of,  presumed,  47. 
That  officer  was  properly  appointed,  49 
That  attorney  is  properly  enrolled,  49. 
That  vestry  clerlj  is  properly  appointed,  49. 
So  as  to  pound-keeper,  49. 
As  to  collector  of  taxes,  49. 
As  to  church  warden,  50. 
As  to  master  in  chancery,  50. 
That  soldier  is  attested,  50. 

That  surrogate  has  authority  to  administer  oath,  50. 
That  person  is  officer  of  post-office,  50. 
That  trustees  have  authority,  50. 
That  notary  has  power  to  take  affidavits,  50. 
That  attorney  has  authority  from  client,  50. 
Reasons  for  these  rulings,  50. 
Officers,  presumptions  that,  do  their  legal  duty,  53. 
Illustrations  in  the  different  States,  54-55. 
That  officer  made  entries,  54. 
That  vote  of  council  was  unanimous,  55. 
That  officer  was  elected  by  ballot,  55. 
That  affidavit  was  made  in  court,  56. 
That  register  acted  on  proper  evidence,  56. 
That  levy  was  made  by  sheriff,  56. 
That  seal  is  good  without  wax,  56. 

That  appearance  was  entered  by  authorized  attorney,  56. 
The  proclamation  was  posted  by  order  of  commander,  66. 
That  proper  notice  was  given  by  officers,  56. 
That  meeting  of  corporation  was  properly  adjourned,  57 
That  fee  charged  is  legal,  57. 
That  summons  was  served  in  apt  time,  67. 
That  administrator  has  made  proper  settlement,  67. 
That  writ  ^fSi3  properly  returned  by  sheriff,  57. 
That  public  surveyor  is  qualified,  57. 
That  judgment  was  properly  recorded  by  recorder,  58- 
That  land  was  appraised  before  being  sold,  68. 
That  taxes  were  paid  by  testator,  58 
Reasons  for  the  rulings,  59. 


INDEX.  G39 

OPPORTUNITY. 

To  commit  crime  raises  presumption  of  guilt,  COG. 

Illustrations,  50(>. 
Unless  another  had  better  opportunity,  50G. 

Illustrations,  50G 

OTHER  CRIMES. 

Other  crime  than  that  charged  can  not  be  proved  against  prisoner, 
481. 

Illustrations,  481-483. 

As  tliat  prisoner  had  tendency  to  commit  crime  of  kind  charged, 

483. 
That  one  indicted  for  riot  had  participated  in  a  previous  riot, 

483. 
That  person  indicted  for  raping  T.  had  raped  L.,  483. 
That  person  indicted  for  poisoning  his  wife  had  been  intimate 

•with  woman  whose  husband  had  been  poisoned,  483. 
That  person  indicted  for  forging  A.'s  name  had  forged  B.'s,483. 
That  one  indicted  for  hiring   A.   to    steal  had  hired    him  to 

forge,  483. 
That  person  indicted  for  stealingfrom  B.  had  assaulted  him,  483. 
That  person  indicted  for  stealing  a  horse  had  stolen  money,  483. 
That  person  cliarged  with  performing  abortion  on  A.  had  done 

so  on  B.,  483. 
That  person  charged  with  murder  of  illegitimate  child  had  com- 
mitted rape, 484. 
That  woman  charged  with  killing  one  child  had  killed  another, 

484. 

Reasons,  484,  485. 

Other  instances,  48G. 
To  prove  knowledge  or  intent,  another  crime  may  be  shown, 

487. 
Illustrations,  487. 

Reasons,  487,  488, 

To  prove  motive,  another  crime  may  be  showTi,  487. 

Illustrations,  488. 

To  prove  that  crime  was  not  accidental,  separate  crime  may  be 

shown,  488. 

Illustrations,  489. 

Reasons,  490. 

Res  gestce  may  be  proved  though  another  crime,  400. 

Illustrations,  490. 

Reasons,  491,  492. 

OWNERSHIP. 
See  Possession;  Real  PRorERXY;  Chattels. 

PARENT  AND  CHILD. 
See  Natuke,  Coukse  of. 


640  INDEX. 

PARENTAGE. 
See  Legitimacy. 

PAETNERSHIP. 

See,  also,  Course  op  BusrsrEss. 
Partnership  presumed  to  continue,  172. 
Illustrations,  175. 

PAT^rENT. 

Presumption  of  payment  and  discharge  of  obligations,  308. 
Bonds  presumed  paid  after  twenty  years,  308. 
Illustrations,  315. 
Reasons,  315. 
Mortgages  presumed  paid  after  twenty  years,  308. 
Illustrations,  316. 
Reasons  317-319. 
Legacies  presumed  paid  after  twenty  years,  308. 
Illustrations,  319. 
Reasons,  319. 
Taxes  presumed  paid  after  twenty  years,  308. 

Illustrations,  320. 
Judgments  presumed  paid  after  twenty  years,  308. 

Illustrations,  320. 
Trust  presumed  executed  after  twenty  years,  308. 

Illustrations,  320. 
Covenant  presumed  performed  after  twenty  years,  308. 
Illustrations,  320. 
Reasons,  321. 
Presumption  of  payment  does  not  arise  from  less  than  twenty  years, 
322. 
Unless  In  conjunction  with  other  circumstances,  322. 
Illustrations,  323. 

Reasons,  323-327. 
Presumption  from  lapse  of  time  may  be  rebutted,  327. 
Illustrations,  327. 
Reasons,  327-330. 
Statute  of  limitations  can  not  be  shortened  by  lapse  of  time  alone,  327. 
Illustrations,  330. 

Reasons,  330-332. 
Presumption  of  payment  may  be  rebutted,  how  — 

1.  By  acknowledgment  of  debt  by  debtor,  333. 

Illustrations,  333. 
Reasons,  334,  33C. 

2.  By  part  payment,  333. 

Illustrations,  336. 

3.  By  known  insolvency  of  debtor,  333, 

Illustrations,  336. 
Reasons,  337-310. 


INDEX.  641 

PAYMENT  —  Continued . 

i.  Or  incapacity  of  debtor,  333. 

Illustrations,  340. 
6.  Or  by  relation  of  tlie  parties,  333. 
Illustrations,  340. 
Reasons,  341. 

6.  Or  by  situation  of  the  parties,  333. 

Illustrations,  342. 

7.  Or  by  intention  of  the  parties,  333. 

Illustrations,  342. 
Reasons, 343. 

8.  Or  by  other  facts  explaining  the  delay,  333. 

Illustrations,  343. 
Presumption  of  payment  other  than   by  lapse   of  time   will  arise 
from  — 

1.  Production  of  receipt  from  creditor,  344. 

Illustration,  344. 

Reasons,  344-346. 

2.  Possession  by  debtor  of  obligations,  344. 

Illustrations,  316. 

Reasons,  347-349. 

3.  Cancellation  of  obligation,  344. 

Illustrations,  349. 
Reasons,  349-350. 

4.  Payment  of  later  debt,  344. 

Illustrations,  350. 

5.  Passing  of  money  after  debt  due,  344. 

Illustrations,  351. 

6.  Custom  of  trade,  344. 

Illustrations,  352. 

7.  Other  circumstances,  344. 

Ulustralious,  353,  355. 
Presumption  does  not  arise  — 

1.  When  debtor  might  have   got  obligation  without  paying  it, 
355. 

Illustrations,  355. 

2.  Where  debt  paid  was  not  debtor's  alone,  355. 

Illu-,tratlons,  356. 
Presumption  of  payment  is  stronger  than  presumption  of  couliuu- 
ance,  356. 

But  weaker  than  presumption  of  Innocence,  356. 
Illustrations,  356. 
Reasons,  357. 
PEN.VLTY. 
See  Fraud. 

PERSONAL  PRORERTY 
See  Chattels. 

41 


G42  INDEX. 

rOSSESSION. 
See  Suit;  L.vkceny;  Chattels;  Real  Prorerty. 
Possession  or  ownersliip  of  property  presumed  to  continue,  163. 

Reasons,  163. 
Non-possession  or  loss  of  property  presumed  to  continue,  153,  164. 

Illustrations,  IG-i, 
Possession  may  overthrow  presumption  of  innocence,  478. 
Illustrations,  478-481. 

PREPARATIONS. 

As  to  crime,  raises  presumption  of  guilt,  608. 
To  accomplish  crime,  608. 

Illustrations,  508 
To  prevent  discovery,  508. 

Illustrations,  509. 
To  aid  escape,  608. 

Illustrations,  509. 
To  avert  suspicion,  508. 

Illustrations,  509. 
Reasons,  510. 
Aliter  where  preparations  innocent,  510 

Illustrations,  510. 
Or  for  another  crime,  610. 

Illustrations,  611. 
Or  crime  frustrated  or  abandoned,  510. 

Illustrations,  611. 

PRESUMPTIONS. 
Doflued,  556. 

Must  be  based  on  fact  and  not  on  inference,  569. 
Illustrations,  509. 

Reasons,  570-575. 
Can  not  contradict  facts,  676. 

Illustrations,  676. 

Are  not  continuous.  579. 

Illustrations,  679. 

Reasons,  579. 

Are  not  retroactive,  579. 

Illustrations,  580. 

Reasons,  £81. 

PRESUMPTIONS  OF  FACT. 
Defined,  556. 

PRESUMPTIONS  OF  LAW. 
Defined,  556. 

PRIVILEGED  COMMUNICATIONS. 
See  Witnesses 


INDEX.  643 

REAL  PROPERTY. 

Real  property,  presumptions  in  the  law  of,  403. 

Possession  and  lapse  of  time,  presumptions  arising  from,  403. 

Possession  of  thirty  years    raises    presumption  of  grant  from 

Crown,  404. 
Grant  of  fishing  dam  presumed  after  sixty  years,  404. 
Existence  of  link  in  title  presumed  from  time,  404. 
And  conveyance  pursuant  to  agreement,  404. 
And  grant  of  incorporeal  hereditament,  405. 
And  grant  of  easement,  405. 
And  ouster  of  co-tenant,  405. 
And  payment  of  dower,  405. 
Ajid  dedication  of  road,  405. 
Reasons, 405-417. 
Act  of  Legislature,  existence  of  presumed  from  lapse  of  time,  417, 
Ko  presumption  of  grant  where  none  exists  to  luake  it,  417. 
Illustrations,  417. 

Reasons,  417-419. 
Owner  and  possessor  presumed  to  have  good  title,  419. 

Possession  of  deed  raises  presumption  of  delivery,  419. 

So  from  lapse  of  time,  419. 
Possession  of  land  by  grantor  presumed  to  be  for  breach  of 

condition,  419. 
Administration  presumed  from  division  of  property,  419. 
Regularity  of  sale  under  power,  from  lapse  of  time,  419 
And  power  of  agent  to  make  it,  419. 

RECENT  POSSESSION. 

Recent  possession  in  larceny  or  robbery,  518. 
Illustrations,  518. 

Reasons,  519-522. 
Reasonable  explanation  of  possession  overthrows  presumption,  622. 
Illustrations,  oL'2. 
Reasons,  522. 
Unless  explanation  inconsistent,  522. 
Illustrations,  523. 
Reasons,  523. 
What  is  or  is  not  "  recent,"  624. 
Kind  of  property  a  test,  624. 
Illustrations,  525. 

Reasons,  52G-529. 

REGULARITY. 
See    JiDiciAL    Acts;    Official   Acts;    Officers;    Legislature; 
Course  of  Business. 

RES  GEST.E. 

Ees  GentcB  may  be  proved  though  another  crime,  400. 
Illustrations,  490. 

Reasons,  491,  492. 


644  INDEX. 

RESIDENCE. 
See  DoMiciL. 

ROBBERY. 
See  Recent  Possession. 

SALES. 
See  CotJRSE  of  Business. 

SANITY. 
See  also  Insanity. 
Presumption  of,  280. 

SERVICES. 

Services,  agreement  to  pay  for  presumed,  74. 

To  pay  medical  services  rendered,  74. 
But  not  where  parties  are  near  relatives  or  of  the  same  family,  74. 
Illustrations,  75.' 
Reasons,  75-77. 

SERVANT. 
See  Services;  Course  of  Business. 

SILENCE. 

Silence  when  interrogated  raises  presumption  of  guilt,  545. 
Illustrations,  545. 
Reasons,  546, 
Unless  in  judicial  interrogation,  545. 
Illustrations,  549. 
Reasons,  549. 
Failure  to  produce  evidence,  raises  presumption,  549. 
Illustrations,  551. 
Reasons,  551. 
Prisoner  declining  to  testify  in  his  own  behalf,  551. 

SOLVENCY. 

Solvency  or  insolvency  presumed  to  continue,  172. 
Illustrations,  173, 174. 

SPOILS. 
See  Fruits  of  Crime. 

SPOLIATION. 

Spoliator,  presumptions  against  a,  120. 

Omission  of  party  to  testify,  presumption  arises  against  him,  120. 
Of  seaman  who  had  charge  of  light  on  vessel,  121. 
Of  party  who  is  charged  with  fraud,  121. 
Refusal  to  produce  deed  on  which  party  claims,  121. 
Or  to  produce  letter  sent  to  one,  121. 
Or  to  produce  book  claimed  as  private  one,  122. 
Agreement  not  produced  presumed  stamped,  122. 
Invoices  not  produced,  goods  presumed  undervalued,  122. 


INDEX.  645 

SPOLIATION  — Continued. 

Refusal  to  produce  building  plan  or  to  allow  expert  to  ex- 
amine building,  122, 
Contents  of  bottles  of  liquor  not  proven,  presumption  that 

it  was  the  cheapest  of  licjuor,  122. 
Amount  of  note  not  proved,  presumption  that  it  was  of  the 

smallest  denondnation,  122. 
Price  of  cattle  received  of  owner  not  shown,  presumption 

that  it  was  the  highest,  123. 
Witness  refusing  to  explain  facts  in  her  knowledge,  123. 
And  refusing  to  produce  books,  123. 

Four  out  of  Ave  attorneys  of  a  party  deny  a  fact,  presump- 
tion that  the  other  could  not,  123. 
Reasons,  123-134. 
As  to  annoyance  from  passing  trains,  134 
Exceptions  where  evidence  is  not  his  power,  120,  135. 
As  where  another  has  his  muniments  of  title,  135. 
Or  a  witness  is  equally  within  the  call  of  both  sides,  135. 
Or  there  is  no  proof  that  he  has  better  evidence,  135. 
Reasons, 135-137. 
Exception  when  evidence  is  privileged,  137. 

As  confidential  communication  between  attorney  and  client,  137. 
Presumption    arising  from    non-production  of    evidence  does  not- 
relieve  opposite  party  from  proving  his  case,  137. 
Illustrations,  137. 

Reasons, 138-140. 
Alteration,  suppression,  falsification  or  manufacturing  evidence,  pre- 
sumption from,  140. 
Goldsmith  taking  stone  from  socket  and  converting  it,  stone" 

presumed  to  be  of  the  highest  value  and  water,  140. 
Party  having  part  of  stolen  diamonds  presumed  to  have  all,  141. 
Executor  altering  papers  of  testator,  141. 
Husband  suppressing  deed  of  wife,  141. 

Party   i)reveuting  value  of   goods  being  shown  mulct   in  high- 
est, 141. 
Destruction  of  deed  by  claimant,  141. 
And  of  contract  of  ^ale  by  indorser,  142. 
Carrying  off  mortgaged  goods,  142. 
Destruction  of  bond  by  obligor,  142. 
Destruction  of  evidence  of  payment  by  party,  142. 
Kidnaping  of  heir  to  estate  by  claimant,  142. 
Manufacturing  of  evidence  by  party  to  a  cause,  143. 
Falsity  of  seal  on  certificate,  143. 
Alterations  in  account  book  by  creditor,  143. 

Reasons, 143-148. 
Trustee  failing  to  preserve  his  vouchers,  148. 
Aijjnt  of  candidate  destroyin;;  ids  accounts,  148. 
Coucealmeut  of  books  by  ollicers  of  corporations,  148. 


V 


G46  INDEX. 

SPOLIATION—  Continued. 

Destruction  of  vouchers  and  invoices  by  partner,  149. 

Reasons,  148-149. 
Presumptions  in  international  law,  150-151. 
Spoliation  aloue  may  defeat  claim  but  can  not  sustain  one,  152,  153. 
Presumption  against  spoliator  does  not  arise  — . 

1.  AVhere  documents  otherwise  proved,  154. 

Illustrations,  154. 

2.  Or  spoliation  open  and  for  cause,  154. 

Illustrations,  154. 
Does  not  extend  beyond  thing  taken  or  suppressed,  155. 
Presumption  is  not  conclusive,  15G. 
Destruction  voluntarily  of  document  precludes  spoliator  from  giving 
secondary  evidence,  157. 
A.  burns  up  B.'s  note  to  him,  A.  can  not  sue  B.  on  it,  157. 
Person  burning  up  letter  can  not  prove  its  contents,  157. 
Party  mutilating  paper  can  not  prove  its  contents,  157. 

Illustrations  and  reasons,  157-159. 
Useless  destruction  was  the  result  of  mistake  or  accident,  159. 

Illustrations,  159. 

Reasons,  159,  160. 
Attempt  to  thwart  investigation,  533. 

Illustrations,  533. 
Destruction  of  evidence  raises  presumption,  639. 

Illustrations,  541. 
Concealment  of  evidence,  539. 

Illustrations,  541. 
Fabrication  of  evidence,  539. 

Illustrutions,  542. 
Reasons,  543. 

STATE. 
See  roREiGN  Laws. 

STATUTES. 
See  Legislature. 

SUICIDE. 
See  Lite. 

SLT^PRESSION  OF  EVIDENCE. 
See  Spoliation. 

SURVIVORSHIP. 

Survivorship,  presumption  of,  240. 

No  presumption  of  survorship  as  to  victims  of  common  calamity, 
240. 

Illustrations,  241-243. 
Reasons,  243-246. 
Exceptions,  246. 

Illustrations,  24G,  247. 


INDEX.  C17 

TAXES. 

Taxes  presumed  paid  after  twenty  years,  308. 
lUustrutious,  o20.         " 

THREATS, 

liaise  presumption  of  guilt,  511. 
Illustrations,  511. 
Reasons,  512. 
Aliter  when  another  may  have  executed  them,  612. 
Illustrations,  513. 

TITLE. 
See  Real  Property;  Cuattels. 

TRUSTS. 

Presumed  executed  after  twenty  years,  308. 
Illustrations,  320. 

USURY. 
See  Fraud. 

VALUE, 

Invoices  not  produced,  pjoods  presumed  undervalued,  122. 

Refusal  to  produce  building  plan  or  to  aUow  expert  to  examine  build- 
ing, 122. 

Contents  of  bottles  of  liquor  not  proven,  presumption  that  it  was 
the  cheapest  of  liquor,  122. 

Amount  of  note  not  proved,  presumption  that  it  was  of  the  smallest 
denomination,  122. 

Price  of  cattle  received  for  owner  not  shown,  presumption  that  it  was 
the  highest,  123. 

WITNESSES. 

No  presumption  that  party  not  called  as  witness  has  knowledge  of 
facts,  23. 

Illustrations,  23, 
Omission  of  party  to  testify,  presumption  arises  against  him,  120. 
Of  seaman  who  had  charge  of  light  on  vessel,  121. 
Of  party  who  is  charged  with  fraud,  121. 
Refusal  to  produce  deed  on  which  party  claims,  121. 
Or  to  produce  letter  sent  to  one,  121. 
Or  to  produce  book  claimed  as  private  one,  122. 
Agreement  not  produced  presumed  stamped,  122. 
Invoices  not  produced,  gooiis  presumed  undervalued,  122. 
Refusal  to  produce  building  plan  or  to  allow  expert  tw  examine 

building,  122. 
Contents   of  bottles  of  liquor  not  proven,  presumption   that  it 
was  the  cheapest  of  liquor,  122, 


648  INDEX. 

WITNESSES  —  Continued. 

Amount  of  note  not  proved,  presumption  tliat  it  was  of  the  smallest 

denomination,  122. 
Price  of  cattle  received  for  owner  not  shown,  presumption  that  it 

was  the  highest,  123. 
Witness  refusing  to  explain  facts  in  her  knowledge,  123. 
And  refusing  to  produce  books,  123. 

Four  out  of  five  attorneys  of  a  party  deny  a  fact,  presumption  that 
the  other  could  not,  128. 
Reasons,  123-134. 
As  to  annoyance  from  passing  trains,  134. 
Exceptions  where  evidence  is  not  his  power,  120,  135. 
As  where  another  has  his  muniments  of  title,  135. 
Or  a  witness  is  equally  within  the  call  of  both  sides,  135. 
Or  there  is  no  proof  that  he  has  better  evidence,  135. 
Reasons,  135-137. 
Exceptions  when  evidence  is  privileged,  137. 

As  confidential  communication  between  attorney  and  client,  137, 
Presumption  arising  from  non-production  of  evidence  does  not  re- 
lieve opposite  party  from  proving  his  case,  137. 
Prisoner  declining  to  testify  in  his  own  behalf,  551. 
Illustrations,  137. 
Reasons,  138-140. 


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